Landlord/Tenant Supplement Pt.1

1995 Landlord/Tenant Supplement to Desk Reference
by Robert Doggett, Legal Service of North Texas

TABLE OF CONTENTS

Disclaimer: While every effort has been undertaken to ensure both the reliability and currency of the following information, the following DOES NOT constitute legal advice. It is strongly urged that one seek representation and advice from a licensed, competent attorney before taking any court action. For further information, call the Austin Tenant's Council (512-474-7006), the Legal Aid Society of Central Texas (512-476-7244), or the Dallas Housing Crisis Center (214-828-4244).

NOTE: Due to the length of this document, the hypertext links won't work right unless you wait for the entire document to load before clicking.

Changes in the Statutory Law
Case Law Development

1. Leases

1-1. Definitions
1-2. Tenancies and Licenses Distinguished
1-3. Lease Validity
1-3.1 Contract Law Controls
1-3.2 Oral Leases
1-3.3 Missing Terms
1-3.4. Signature of Both Parties
1-3.5 Enforceability of Certain Provisions
1-3.6 Construction Against Landlord
1-3.7 Refusal to Provide Tenant a Copy of Lease
1-4. Lease Term
1-4.1 Primary Term
1-4.2 Secondary Term
1-4.3 Tenancies at Will
1-5. Covenant of Peacable, Quiet Enjoyment
1-5.1 Improper Entry
1-5.2 Improper Curfews
1-6. Changing the Conditions of a Lease
1-7. Property Rules and Regulations
1-8. Rent and Nonpayment Issues
1-9. Late Charges
1-10. Rent Withholding
1-11. Subleases and Assignments
1-12. Waiver of Tenants' Rights
1-13. Exculpatory Clauses
1-14. Termination of a Lease
1-14.1 General
1-14.2 Termination of Periodic Tenancies
1-14.3 Notice to Vacate
1-14.4 Termination Based on Default
1-14.5 Surrender or Abandonment of Premises
1-14.6 Effect of Termination
1-15. Joint and Several Liability of Contents
1-16. Foreclosure or Sale of the Premises

2. Security Deposits:

2-1. Definitions and Overview
2-2. Procedure to Refund
2-3. Penalties for Non-Compliance
2-4. Nonrefundable "Deposits" and Fees
2-5. Changes in Ownership
2.6 Other Issues

3. Landlord's Liens:

3-1. General Overview
3-1. Requirements and Procedure for Enforcement
3-3. Exempt Property
3-4. Sale of Property
3-5. Abandonment
3-6. Penalties for Violation

4. Repairs:

4-1. Generally
4-2. Express Agreements to Repair
4-3. City Codes
4-4. Constructive Eviction
4-5. Habitability Legislation
4-5.1. Landlord Duties
4-5.2. Exceptions to Landlord Duties
4-5.3. Prerequisites for Tenant Remedies
4-5.4. Tenant Remedies
4-6. Retaliation for Reporting Repairs
4-7. Severe Casualty
4-8. Closing the Rental Premises
4-9. Harassment and Other Penalties
4-10. Modifications for the Disabled
4-11. Deceptive Trade Practices Act (DTPA) and Repairs

5. Security Devices:

5-1. Overview of Old and New Laws
5-2. Definitions
5-3. Locks and Other Security Measures Necessary
5-3.1. Locks and Door Viewers
5-3.2. Security Officers
5-4. Rekeying and Changing Locks
5-5. Repairs of Security Devices
5-5.1. Overview of Duty
5-5.2. Right of Landlord to Charge for Repair
5-6. Remedies for Non-Compliance
5-6.1. Failure to Install Required Security Devices
5-6.2. Failure to Comply With Tenant Requests
5-7. Landlord's Defenses
5-8. Miscellaneous

6. Disclosure of Ownership and Management:

6-1. Landlord Duty
6-2. Remedies for Non-Compliance

7. Smoke Detectors:

7-1. Landlord Duty
7-2. Remedies for Non-Compliance
7-3. Availability of DTPA and Common Law Claims

8. Lockouts and Removal of Property

8-1. Overview
8-2. Adding or Changing Locks
8-3. Removing Landlord Property
8-4. Remedies for Non-Compliance

9. Utility Problems:

9-1. General Overview
9-2. "All Bills Paid" Lease
9-3. Submeter or Master Metering Agreements
9-4. Independent Contract
9-5. Shutoff Because of Landlord's Failure

10. Judicial Evictions

10-1. Definitions
10-2. Jurisdiction
10-3. Venue
10-4. Certiorari
10-5. Procedure
10-5.1. Demand for Possession Notice
10-5.2. Parties in Suit
10-5.3. Complaint and Citation
10-5.4. Possession Bond
10-5.5. Hearing
10-5.6. Attorney's Fees
10-5.7. Jury Trials
10-6. Writ of Possession
10-7. Appeal to County Court
10-7.1 Overview
10-7.2. Computation of Time
10-7.3. Appeal Bonds
10-7.4. Pauper's Appeal
10-7.5. Requirement of Written Answer
10-7.6. Writs in County Court
10-8. Appeals to Court of Appeals
10-9. Other Suits and Damages

Scope and Acknowledgement
Changes in the Statutory Law

A. Security Devices Tex. Prop. Code SS 92.151 et seq.

As noted in the text of the Chapter, tenants are afforded new protections at the landlord's expense for all dwellings after January 1, 1995. For example, door viewers, and keyless bolting devices must be installed on each exterior door of the dwelling at the landlord's expense. Sliding glass windows are also required to be secured using two methods rather than one.

B. Occupancy Limits Tex. Prop. Code SS 92.010

This section limits the number of adults that a landlord may allow to occupy a dwelling. The general rule is three times the number of bedrooms in the dwelling. More are allowed if this rule were to violate fair housing laws, or the extra adult is temporarily seeking sanctuary from domestic violence. A tenant association or other entity has standing to bring an action under this section.

C. Cash Rental Payments Tex. Prop. Code SS 92.010 [sic]

This section (numbered the same as Occupancy Limits in the Code) provides that landlords must accept cash, record the transaction in a record book, and provide a receipt to tenants for rent unless the written lease requires another form of payment. A landlord is not necessarily required to provide a receipt where the required payment is by check, money order, or "other traceable or negotiable instrument". A tenant association or other entity has standing to bring an action under this section in addition to the tenant harmed.

Case Law Developments

A. Breach of Warranty of Quiet Enjoyment

Goldman v. Alkek, 850 S.W.2d 568 (Tex. App.-- Corpus Christi 1993, writ requested (all elements normally needed to show breach of warranty of quiet enjoyment not required in a commercial, express warranty situation).

B. Interpretation of Smoke Detector Statute

Coleman v. United Savings Association of Tex. App., 846 S.W.2d 128 (Tex. App.--Fort Worth 1993, no writ) (statute is sole basis for recovery based upon injury resulting from smoke detector failure, and tenant must request inspection or installation before landlord's duty attaches).

Cannon v. Lemon, 843 S.W.2d 178 (Tex. App.--Houston [14th Dist.] 1992, writ denied) (notice requirement necessary even where tenant suffered mental incapacitation; statute does not violate Open Courts or Due Course of Law, and not unconstitutionally vague).

Epps v. Ayer, 859 S.W.2d 107 (Tex. App.--Eastland 1993, writ denied) (statute preempted DTPA where lease required the landlord to maintain a working smoke alarm).

Gilstrap v. Park Lane Town Home Association, 885 S.W.2d 589 (Tex. App.--Amarillo 1994, no writ) (condo association not liable under statute since statute only applies to landlords).

C. Availability of DTPA

Epps v. Ayer, 859 S.W.2d 107 (Tex. App.--Eastland 1993, writ denied) (statute preempted DTPA where lease required the landlord to maintain a working smoke alarm).

West Anderson Plaza v. Feyznia, 876 S.W.2d 528 (Tex. App. --Austin, no writ) (court did not strike down a commercial tenant's DTPA counterclaim to a forcible detainer action as an improper counterclaim; the opinion does not address the issue and it appears the landlord did not object).

D. Forcible Detainer Procedure

TMC Medical, Ltd., v. Lasaters French Quarter Partnership, 880 S.W.2d 789 (Tex. App.--Tyler 1993, writ dis'm w.o.j.) (court upheld denial of injunction of future forcible detainer action because assertions should be made as defense in justice court forcible detainer proceedings).

Housing Authority of Corpus Christi v. Massey, 878 S.W.2d 624 (Tex. App.--Corpus Christi 1994, no writ) (injunctive relief appropriate after final judgment entered in forcible detainer suit where new lease created because housing authority waited 9 months to obtain writ on judgment).

Winrock Houston Assoc. v. Bergstrom, 879 S.W. 2d 144 (Tex. App. --Houston [ 14th Dist. ] 1994, no writ) (bill of review appropriate to review forcible detainer suit where defendant not served).

Morgan v. Pierce 864 S:W.2d 643 (Tex. App.--Tyler 1993, no writ) (Tex. R. Civ. P. 749b, requiring rent deposits when appealing forcible detainer suit as a pauper, is not applicable where landlord did not plead nonpayment of rent and there was no evidence in record that tenant failed to pay rent).

Krull v. Sonwza, 879 S.W.2d 320 (Tex. App.--Houston [14th Dist.] 1994, writ denied (issue of possession in forcible entry and detainer action is not "from final judgment of county court unless premises in question are used for 'residential purposes only." TX. Prop. Code Ann. SS 24.007. The court also held that under Tex. R. Civ. P. 752, tenants could only recover damages related to obtaining and/or maintaining possession of the premises, and only if the tenant is the prevailing party and damages were

Fandey v. Lee, 880 S.W.2d 164 (Tex. App.--El Paso 1994, writ denied (refusing to answer jurisdictional question of whether premises were being used solely for residential purposes for purpose of precluding appeal pursuant to TEX. PROP. CODE ANN. SS 24.007 where no issue was either presented to the fact finder or raised in the pleadings; in dicta, the court said that if the jury had found that the premises were not used only for residential purposes [appellees were living in a home out of which they also conducted a "voice mail business"] there would have been no right of appeal in this me since the statute on its face sets a bright-line test.)

Mitchell v. Armstrong Capital Corp.877 SW2d 480 (Tex. App.-- Houston [1st Dist.] 1994, n.w.h.) (failure to give adverse party statutory notice of appeal in forcible detainer action does not create jurisdictional defect where the party had actual knowledge and failed to show harm due to lack of not-ice.)

Weeks v. Hobson, (Tex. App.-- Houston [1st Dist.] 1994) no writ (denying mandamus relief to Realtor challenging order resulting from evidentiary hearing where there was no record of hearing. Defendant in forcible detainer action had filed defective pauper's affidavit and appealed plaintiff's motion to dismiss to county court, where he was allowed to affirm his affidavit. The court of appeals noted that the defendant should have been allowed to correct the defect in the justice court.)

E. Attorney Fees Can Be Obtained in County Court Appeal

Jones v. Falcon, 875 S.W.2d 29 (Tex. App.--Houston [14th Dist.] 1994, writ denied) (attorney fees can be obtained in county court suit brought under security deposit statute even though they were not pleaded in justice court).

Mastermark Homebuilders, Inc., v. Offenburger Construction, Inc., 857 S.W.2d 765 (Tex. App.--Houston [14th Dist.] 1993, no writ) (Court held that county court properly allowed defendant in forcible detainer suit to amend pleadings to include claim for attorney fees because not necessary to plead in justice court).

F. Landlord Waived Nonwaiver Provision

Winslow v. Dillard Dept. Stores, Inc., 849 S.W. 2d 862 (Tex. App.--Texarkana 1993, writ denied) (lessor waived nonwaiver provision of lease).

G. Certiorari Available to Review Reentry

Big State Pawn and Bargain Center No. I v. Garton, 833 S.W.2d 669 (Tex. App.--Eastland 1992, writ denied) (county court had jurisdiction to review by certiorari a commercial tenant's writ of reentry).

1. Leases

1-1. Definitions

The tenant-landlord relationship arises from the lease agreement, which is defined for residential tenancies "any written or oral agreement between a landlord and tenant that establishes or modifies the terms, conditions, rules, or other provisions regarding the use and occupancy of a dwelling." Tex. Prop. Code SS 92.001.

A "dwelling" is defined in this section as "one or more rooms rented for use as a permanent residence under a single lease to one or more tenants". A "landlord" can be the owner or another lessor of the dwelling, but not simply the property manager unless the manager purports to be the owner or lessor in an oral or written lease. Tex. Prop. Code SS 92.001(2).

A "tenant" is defined as a person who is authorized by a "lease" to occupy a "dwelling" to the exclusion of others. Tex. Prop. Code SS 92. 001 (b).

1-2. Tenancies and Licenses Distinguished

A lease agreement is different from a license, easement, or profit agreement because it grants exclusive possession of the premises to the tenant-grantee. This issue is important because these other arrangements grant limited rights; for example, licenses are deemed to be revocable at the will of the licenser, making a formal eviction proceeding unnecessary to evict an unwanted licensee.

No special words or acts are required to create a tenancy and it may be express or implied. For example, a tenancy at will occurs after a mortgagee forecloses on a mortgagor. The mortgagor (occupant) becomes a tenant at the will of the mortgagee (owner). A tenancy may also arise by operation of law. See Angelino County Lbr. Co. v. Reinhardt, 270 S.W.2d 259, 263 (Tex. Civ. App.-- Beaumont 1954, no writ).

Whether a license or a tenancy exists depends on the intention of the parties and is a question of fact. The test is whether the owner of the property has retained control of and access to the premises. The court in Byrd v. Fielding, 238 S.W. 2d 614, 616 (Tex. Civ. App.-- Amarillo 1951, no writ) stated, "Proof that the owner cares for the rooms, retains a key to the rooms, or resides on the premises in the course of a business of hiring out rooms, indicates a lodging contract; whereas, a showing that the hirer exercises complete control of the rooms indicates a lease."

The language within a written contract may also indicate that innkeeper-boarder relationship exists between the parties; however, the above mentioned test is the main factor (a tenant cannot waive her rights to judicial eviction, etc., by written agreement).

Another provision of the Texas Property Code definition of a landlord-tenant relationship considers the occupant's use of the dwelling. Tex. Prop. Code SS 92.001(l). If the occupant uses the dwelling as his sole residence, then a court should be more willing to consider him a tenant.

In terms of public policy, an occupant of a permanent residence should be given a fair hearing before being forcibly removed from his only home. The hearing obviously helps to prevent improper or at least disorderly removals.

The provision of utilities, furnishings, and cleaning service are also factors indicating that the owner has retained control, and the occupant has only received a license. Guests in hotels, or rooming houses are generally viewed as licensees and therefore have fewer rights and protections compared to tenants. For example, an innkeeper can forcibly remove a boarder without resorting to the legal system. The boarder still may have an action for an improper termination of the license or for unnecessary force used in removing the boarder; however, the boarder will not have remedy to allow her to regain possession. Mallam v. Trans-Texas Airways, 227 S.W.2d 344, 346 (Tex. Civ. App.--El Paso 1949, no writ); McBride v. Hosey, 197 S.W.2d 372, 375 (Tex. Civ. App.--El Paso 1946, writ ref'd n.r.e.). The unwanted boarder may even be considered to be a criminal trespasser and subject to arrest. See Tex. Penal Code SS 30.05. Innkeepers also have broader authority to lien all property contained within rented room. Tex. Rev. Civ. Stat. art. 4592, et seq.

Mobile home owners, on the other hand, will generally be considered tenants of the park owner's property. (However, they could be considered commercial tenants under the Texas Property Code because the lease agreement does not concern a "dwelling".)

Cross Ref: 1-4.3. Tenancies at Will

1-3. Lease Validity

1.3.1. Contract Law Controls
Although a lease blends property and contract doctrines, it is construed as a contract, and the general law of contracts determine a lease's validity. Aycock v. Vantage Management Co., 554 S.W.2d 235, 237 (Tex. Civ. App.-- Dallas 1977, writ ref'd n.r.e.).

1-3.2. Oral Leases
Oral leases are binding contracts so long as the term is not greater than one year. Tex. Prop. Code SS 5.021; Bus. & Corn. Code SS 26.01(b)(5).

Oral contracts for more than a year may be enforceable under the doctrine of promissory estoppel, Eg., Miller v. Nacol, 224 S.W.2d 734, 735 (Tex. Civ. App. --Fort Worth 1949, no writ)(court upheld an oral lease longer than a year where the landlord accepted payments beyond the one year period, the tenant had made valuable improvements, and there was a signed memo by both parties generally describing the lease agreement).

1-3.3. Missing Terms
In many cases, missing terms will not void a lease because they will be implied by law. Lovelady v. Harding, 207 S.W. 933, 935 (Tex. Civ. App.--Fort Worth 1918, no writ) (implied duty to pay reasonable rent); Bailey v. Williams, 223 S.W. 311, 313 (Tex. Civ. App. --Austin 1920, no writ) (rent implied to be due at the end of the lease term). Flores v. Rizik, 683 S. W.2d 112 (Tex. Civ. App. 1984) (implied duty of tenant not to damage the premises).

If a lease contains no definite time period, it will be deemed a tenancy at will, Hollcombe v. Lorino, 79 S.W.2d 307 (Tex. 1935) unless a periodic tenancy is implied based upon the rent paying period. Tex. Prop. Code SS 91.001.

1-3.4. Signature of Both Parties
A written lease need not be signed by both parties in order to be valid. The lease is valid if the non-signing party has begun to act under the lease or has allowed the other party to act under the lease. Orgain v. Butler, 478 S.W,2d 610, 614 (Tex. Civ. App.--Austin 1972, no writ); Vinson v. Horton, 207 S.W.2d 432 (Tex. Civ. App.--Texarkana 1947, no writ).

Also, a lease which was signed by only one party may be admissible as evidence of the terms of an oral lease. This rule may not apply to leases for more than one year because delivery is also required. Tex. Prop. Code SS 5.021. Delivery does not require physical delivery of the document. Any act of the landlord showing intention to be bound by the lease should be sufficient. Scroggins v.Roper, 548 S. W. 2d 779 (Tex. Civ. App. --Tyler 1977, writ ref'd n. r. e.).

1-3.5. Enforceability of Certain Provisions
Both parties to a lease, as in any other contract, must give consideration and consent to the agreement. In the residential tenancy arena, prospective tenants are usually given form leases to sign.
Bargaining is rarely successful since the landlords are usually inflexible, thus little bargaining is ever attempted. In these circumstances, some of the more oppressive conditions of the lease may be held invalid or unconscionable. Gonzales v. County of Hidalgo, 489 F. 2d 1043 (5th Cir. 1973)(landlord's lien provision struck); Reed v. Ford, 760 S.W.2d 26 (Tex. App.--Dallas 1988, no writ); Thrift v. Johnson, 561 S.W.2d 864 (Tex. Civ. App.--Houston [1St Dist.] 1977, no writ)(in Reed and Thrift the court did not enforce provisions which would have forfeited tenant's security deposit).

For a summary of cases holding lease clauses unconscionable, see Farrelly, Leasehold Unconscionability: Caveat Lessor, 7 Fordham Urban Law Journal 337 (1979). An unconscionable action may also be actionable as a violation of the Texas Deceptive Trade Practices-Consumer Protection Act. Tex. Bus. & Corn. Code SS 17.50(a)(3).

Cross Ref: 1-12, Waiver of Tenant's Rights and Unenforceable Penalties

1-3.6. Construction Against Landlord
There are numerous cases which hold that leases are to be construed against the landlord. Eg., Freight Terminals, Inc. v. Ryder System, Inc., 326 F.Supp. 981 (D.C.Tex. 1971); Sirtex Oil Industries, Inc. v. Erigan, 403 S. W.2d 784 (Tex. 1966). In Myers v. Ginsburg, 735 S.W.2d 600, 603 (Tex. App.--Dallas 1987, no writ), the court stated as follows:

A lease will be given a reasonable construction that will carry out the intention of the parties, and in case of any doubt as to that intention, it will be construed most strongly against the lessor. Citing Frank v. Kuhnreich, 546 S.W. 2d 844, 848 (Tex. Civ. App. --San Antonio 1977, writ ref'd n.r.e.).

1-3.7. Refusal to Provide Tenant a Copy of Lease
A landlord's refusal to comply with a tenant's request for a copy of the lease may cause the lease to be invalid.

A basic principle of contract law is that a written agreement will not be binding unless it is signed and delivered by both parties. Tex. Prop. Code SS 5.021; Scroggins v. Roper, 548 S.W.2d 779 (Tex. Civ. App.--Tyler 1977, writ ref'd, n.r.e.).

There is an exception to this rule where the tenant has evidenced acceptance of the lease by his acts or conduct. Orgain v. Butler, 478 S.W.2d 610 (Tex. Civ. App.--Austin, 1972, no writ).

A landlord's refusal to provide a copy of the lease may constitute evidence that the landlord has not accepted the lease and that any lease which the tenant may have signed would constitute an offer which was never accepted by the landlord (with the tenant occupying the property on a month to month basis). See Capital Bank v. American Eyewear, Inc., 597 S.W.2d 17 (Tex. Civ. App.--Dallas 1980, no writ). (In some cases it may be advisable that a request for a copy of the lease include a statement that the request is for information purposes only and that, by making such a request, the tenant is not ratifying the lease or extending any previously unaccepted offers to be bound by the written lease).

The Texas Real Estate License Act requires that both parties be given a copy of an agreement conveying rights to real estate; however, the Act specifically exempts on site managers of apartment complexes and owners or her employees who rent or lease her real estate.

Tex. Rev. Civ. Stat. art 6573a(3)(G,I).

Cross Ref: 1-3.4. Signature of Both Parties

1-4. Lease Term

1-4.1. Primary Term
The period of time during which the lease is valid is called the primary term.
Generally, this is the definite period the lease stays in effect. The general rule is that a tenancy for a definite term does not require a tenant to give notice, because the lease is over and the end of the period. Bockelmann v. Marynick, 788 S.W.2d 569, 571 (Tex. 1990).

Although the primary term can be expressed, it can also be implied from the time period between payments. In other words, if the parties do not agree to a specific term but do agree to an amount of rent for an explicit period (e.g., $150/month.), then the term of the lease is that period. These tenancies are referred to as periodic tenancies (e.g., month to month; week to week). See Tex. Prop. Code SS 91.001.

1-4.2. Secondary Term
If the primary term of a written lease expires, and the tenant remains in the unit and the landlord continues to accept rent, then both parties are presumed to continue to be bound by all the conditions of the prior written agreement absent evidence to the contrary. Barragan v. Munoz, 525 S.W.2d 559, 561 (Tex. Civ. App. --El Paso 1975, no writ). The lease is then said to be in the secondary term. See Bockelmann v. Marynick, 788 S.W.2d 569 (Tex. 1990).

A tenant in this situation will have a new tenancy for the same length term as the old tenancy unless the lease provides otherwise, or unless the primary term was for more than one year. Bockeinmann, 788 S.W.2d at 569. If the lease is for more than one year, the new tenancy is for a term of one year only. Willeke v. Bailey, 189 S.W. 2d 477, 481 (Tex. 1945). Most leases, however, have provisions that allow an expired lease to continue on a month to month basis only.

1-4.3. Tenancies at Will
Tenancies "at will" or "at sufferance" do not have a time period. They are rare in Texas because SS 9 1. 001 of the Property Code will imply a periodic tenancy (in the absence of express agreement to the contrary) as long as the tenant pays rent.

Tenancies "at will" or "at sufferance" most often occur when the landlord allows the tenant to stay without payment of rent or any other consideration, and they can be terminated at the will of the landlord. Regardless of the type of tenancy, however, a landlord must still give proper notice to vacate and go through judicial eviction procedures to remove an unwanted tenant from the premises. Tex. Prop. Code SS 24.005(b). Failure to do so gives rise to a cause of action for illegal lockout and wrongful eviction.

Cross Ref: 1-2. Tenancies and Licenses Distinguished

1-5. Covenant of Peaceable, Quiet Enjoyment

1-5.1. Improper Entry
Absent express language in the lease to the contrary, the law implies a promise by the landlord that the tenant will have peaceful, quiet enjoyment and use of the premises through the term of the lease, HYM Restaurants, Inc. v. Goldman Sachs & Co., 797 S.W.2d 326 (Tex. App. -- Houston [14th Dist.] 1990, writ denied), and that the premises will be exclusively for the use of the tenant.

In essence, a residential tenancy is presumed to be the home of the tenant. A breach of the right to use the premises entirely is called a constructive eviction. See 4-4. Constructive Eviction.

A breach of the tenant's right to the exclusive use of the premises is called a trespass (and, if material, it entitles the tenant to terminate the lease). The tenant may also recover damages caused by the trespass. Clark v. Sumner, 559 S.W.2d 914 (Tex. Civ. App.--Waco 1977, no writ)(landlord allowed dog to enter tenant's dwelling which violated covenant).

Another action that should be considered is an action for forcible entry. But the right to exclusive use can be partially waived in the lease to allow the landlord reasonable entries without being in violation of the covenant. See HYM Restaurants, 797 S.W.2d 326. For example, the Texas Apartment Association lease agreement restricts the landlord from entering the dwelling unless certain broad conditions are present.

Some leases with private landlords and all with a public housing authority that are subsidized by the Department of Housing and Urban Development (HUD) require advance notice before entry into the tenant's dwelling. HUD Form Lease, Handbook 4350.3, Appendix 19a, Para. 20.

Many landlords ignore the basic tenant right of exclusive use and quiet enjoyment, and enter the apartment at will without even knocking first. Unfortunately, the tenant has the right to terminate for only the most severe and permanent violations.

The right to quiet enjoyment probably allows the tenant to change the lock and not give the landlord a key, unless such a lock change is prohibited by the lease (which it often is). Changing the locks will also be prohibited in some cases by SS 92.163 of the Texas Property Code, which prohibits the tenant from removing security devices installed, changed or required after the lease commenced.

The tenant may request that the landlord install a keyless deadbolt on any door, at the tenant's expense, which will at least prevent any entries while the tenant is at home.

Tex. Prop. Code SS 92.157.

Another legal remedy that may be available to discourage the landlord and compensate the tenant for improper entries is the tort of invasion of privacy. Prosser has determined there are four categories contained within the tort, including "an intrusion upon the plaintiff's seclusion or solitude, or into his private affairs." W. Prosser, Handbook of the Law of Tom SS 117 (4th ed. 1971); Gonzales v. Southwestern Bell Tel. Co., 555 S.W.2d 219, 221 (Tex. Civ. App. --Corpus Christi 1977, no writ).

The Texas Supreme Court announced in Billings v. Atkinson, 489 S.W.2d 858, 859 (Tex. 1973), that every citizen has a right of privacy defined as "the right to be left alone, [and] to live a life of seclusion ... " There is no indication that the Court intended to excuse landlords from respecting the right to privacy held by tenants. The Court also noted that proof of actual damages in not necessary to a recovery. "Damages for mental suffering are recoverable without the necessity of showing actual physical injury in a case of willful invasion of the right of privacy because the injury is essentially mental and subjective, not actual harm done to the plaintiff's body." 489S.W.2d at 859.

Finally, severe intrusions by the landlord could also constitute a deceptive trade practice actionable under the DTPA. Tex. Bus. & Corn. Code SS 17.41, et seq.

Landlords have a right to inspect their property periodically and at reasonable times, or to make routine or requested repairs on the dwelling during reasonable times (especially if advance notice is given). The key word is reasonable. These entries must be reasonable and must not interfere with a tenant's right of privacy and enjoyment of the premises.

1-5.2 Improper Curfews
Landlords generally understand and agree that they must have some evidence of wrongdoing before being able to evict someone. Most want to keep their property free from drug traffic, excessive noise and other offensive activity. It is sometimes difficult for the landlord to determine which tenants are the cause of the problem. Thus, some landlords create a shortcut, a curfew. Violating a curfew is a completely victimless act in itself, and is not rational response to rid a complex of problem visitors or tenants.

If the complex is owned or operated by the government (e.g., public housing, HUD foreclosure), then the tenants have clear constitutional protections available. If the complex is subsidized by HUD, the complex will be in violation of HUD rules if it enforces a curfew. HUD Handbook 4350.3, CHG-1, Para. 44 (1981)("house rules must be reasonable; the rules must be related to the safety care and cleanliness of the building or the safety and comfort of tenants"). Private landlords, not involved with HUD, may still be subject to attack because the provision is unconscionable.

1-6. Changing the Conditions of a Lease
One of the basic purposes of a lease is to give the parties the assurance that during the primary term of the lease they can plan on the conditions of the lease remaining the same.

Usually, a lease cannot be changed during its term unless both parties agree to the change. However, during the secondary term of the lease or during a periodic tenancy (e.g., a month to month lease) any lease provision can be changed by one party as long as the other party receives at least advance notice of at least one full period (e.g., one month) of the change.

If the lease continues to the following period, after giving such a notice, the parties are presumed to have accepted the modified terms. See Tex. Prop. Code SS 91.001.

Modification of a lease can be either oral or written. A written lease can be modified by a subsequent oral agreement even if the lease contains language such as "no subsequent modifications will be recognized as valid" or "all modifications to this lease must be in writing and signed by both parties in order to be valid". Apperson v. Shofner, 3 51 S. W. 2d 367, 369 (Tex. Civ. App. --Waco 196 1, no writ). Certainly, the Deceptive Trade Practices Consumer Protection Act would penalize a landlord who makes promises he does not keep, regardless of what the lease says.

An implied agreement to change a lease can arise from the actions of the parties (course of dealing) without any oral or written words passing between the parties. For example, suppose a written lease calls for rent to be paid monthly on the first of the month. If the tenant begins to pay his rent in two equal amounts on the 1St and 15th of the month and this payment is accepted by the landlord, then the original lease is modified, and the landlord is bound to continue accepting rent on the lst and 15th.

The landlord can initially refuse to allow such an arrangement, but once he does allow it, he is bound by it. Wendlandt v. Sommers Drug Store, 551 S.W.2d 488, 490 (Tex. Civ. App.--Austin 1977, no writ). The landlord may be able to modify the agreement, back to its original terms, if he gives 30 days notice.

Cross Ref: 1-14.2. Termination of Period Tenancies 1-14.5. Waiver of Defaults

1-7. Property Rules and Regulations

Landlord rules and regulations which are in effect at the time the lease is signed may be incorporated into the lease by reference. Any rules which are not in the lease, incorporated or made known to the tenant are probably not binding on the tenant. Orgain v. Butter, 478 S.W.2d 610, 615 (Tex. Civ. App.--Austin 1972, no writ).
Subsequent rules should be treated as any other attempt to unilaterally modify the lease agreement. An implied acceptance by the tenant may be found where the tenant has knowledge of the new rule, fails to protest, stays on the premises, and continues to pay rent. Renewal of the lease is the final acceptance.

Rules are unenforceable if they are unconscionable. In public or subsidized housing, house rules must be reasonable. HUD Handbook 4350.3, CHG-1, Para. 4-4 (1981)("house rules must be reasonable; the rules must be related to the safety care and cleanliness of the building or the safety and comfort of tenants").

Cross Ref: 1-6. Changing the Conditions of the Lease

1-8. Rent and Nonpayment Issues
Usually the monthly rental and the time of payment are set forth in the lease. If no amount is set then the law will imply a "reasonable" rent. Lovelady v. Harding, 207 S.W. 933, 935 (Tex. Civ. App.--Fort Worth 1918, no writ).

If no time is set, then the rent is due at the end of the period for which rent is paid. Bailey v. Williams, 223 S.W. 311, 313 (Tex. Civ. App.--Austin 1920, no writ). However, Bailey is an old case and may not recite the current law in Texas.

The landlord has several options if the tenant falls behind on rent. Most leases provide for rent to be paid on or before the first day of each month and also provide for late charges if rent is more than a certain number of days late.

In some cases, the landlord may resort to more drastic tactics, such as: changing do-or locks, removing landlord property, cutting off electricity, seizing tenant property under a landlord's lien, and judicial eviction. Often these actions are completely improper or incorrectly performed, and the specific legal requirements are discussed in the appropriate sections of this chapter.

Determining rent amounts for lease agreements subsidized by a public housing authority or the Department of Housing and Urban Development (HUD) are often much more complicated. Low income tenants in public housing or in a "Section 8" program have a floating rent amount that varies with their level of income.

Generally, a tenant's rent in these programs is the higher of: 30 percent of the family's monthly adjusted income (deductions are made for children, elderly, disabled, medical expenses); or 10 percent of the family's income. 24 C.F.R. SS 913.102 (1992)(public housing); 24 C.F.R. SS 813 (1992)(Section 8 certificate / existing program).

The remainder of the market rent (not paid by the tenant) is paid by HUD. Many occupants of public or subsidized housing also receive a utility allowance to assist them with paying utilities. Oftentimes, the utility allowance is obtained by decreasing the tenant's rent further rather than writing the tenant a separate check.

1-9. Late Charges

The right to collect late charges is governed by the provisions of the lease. Even if there is no lease provision for late charges, a landlord may condition the acceptance of overdue rent upon the payment of late charges.

Currently there is no specific limit on the amount the landlord can charge as a penalty for paying late. A grossly inequitable fee could be struck as unconscionable.

Unfortunately, a lease of real property is not currently considered a debt transaction in order to subject the fees to usury laws. Potomac Leasing Co. v. Housing Authority of City of Et Paso, 743 S.W.2d 712, 713 (Tex. App.--El Paso 1987, writ denied).

Also, the existence, of late charges, grace periods, etc. in a lease allow the tenant to pay late without the landlord being able to default the tenant for late payment. In other words, the lease may clearly state that rent is due on the first, and that the landlord may consider the tenant in default after the first.

The existence of late fees clearly implies that the rent will be accepted late with payment of a fee. This resolution of these contradicting terms will always be with the tenant (unless the landlord sends one month advance notice that late payments will no longer be accepted [although this may improperly modify the lease and be invalid]).

See 1-3.6. Construction Against Landlord.

Fees over $35 for one day late should be challenged affirmatively as unconscionable in a declaratory suit and a violation of the Texas Deceptive Trade Practices Act.

Tex. Bus. & Corn. Code § 17,45

Some landlords try to disguise their fees by calling them a "rent discount" if the tenant pays on or before the first day of the month and also charge a late fee if the tenant pays after the first. They will call them ducks if they think they can get away with it.

Residents of public housing and residents of other housing subsidized by the department of Housing and Urban Development (HUD) can be assessed a reasonable late fee for delinquent rent. 24 C.F.R. SS 966.4(b)(3) (1992)(public housing); HUD Handbook 7420.7 at 4-17b (Section 8 certificate/existing program); HUD Handbook 4350.3 CHG-1 at 4-14 (other subsidized programs [Project Section 8, 236, 221(d)(3)]).

In public housing, late charges are not due until two weeks after the public housing authority gives written notice of the charge. Imposition of the charge is adverse action allowing the tenant access to the public housing authority grievance procedure. 24 C.F.R. SS 966.4(b)(4) (1992).

In a subsidized housing situation the tenant must be given at least a five day grace period, the charge cannot exceed $5 for the sixth day, plus $1 for each additional day. HUD Handbook 4350.3 CHG-1 at 4-14. The total charge cannot exceed $30.

Furthermore, an owner cannot evict a tenant for failure to pay late fees. See Villa Apollo Associates H v. Bellafant, 659 F.Supp. 335 (E.D. Mich. 1987)(upholding charge scheme); contra Highgate Associates Ltd. v. Merryfield, 597 A. 2d 1280 (Vt. Sup. Ct. 1991) (striking down HUD provisions allowing late fees up to $30 a month).

Acceptance of late rent without protest over several months, without imposing late charges, may be considered an implied modification of the contract or waiver. This would allow the tenant to continue paying late without a late charge until such time as the landlord gives actual notice that late payments will no longer be accepted, or that a late charge will be imposed. A.L. Carter Lumber Co. v. Saide, 168 S.W.2d 629, 630 (Tex. 1943)(contract to sell land); Cox's Bakeries of North Dakota v. Homart Development Corp., 515 S.W.2d 326, 329 (Tex. Civ. App.-- Dallas 1974, no writ).

Note: NSF check fees cannot exceed $25, unless the holder is entitled to the fee pursuant to any rule, regulation, judicial decision or written contract. Tex. Rev. Civ. Stat. art. 9022.

Cross Ref: 1-14.7.b. Unenforceable Penalties

1-10. Rent Withholding

Under general principles of contract law, a breach of contract by one party will normally allow the other party to withhold its performance to compensate or mitigate the damages caused by the breach. This general rule is not recognized for residential leases. Texas courts apply the theory of independent covenants to rent withholding. Even if the landlord has breached a covenant or term of lease, a court can hold that such breach does not justify nonperformance by the tenant, absent a specific statute or lease provision to the contrary. Mitchell v. Weiss, 26 S.W.2nd 699 (Tex. Civ. App.--El Paso 1930, no writ). The court in Mitchell held that the payment of rent is an independent covenant that must be fulfilled regardless of the other party's actions.

There are cases and statutes that limit the doctrine of independent covenants. The Texas legislature recently adopted two statutes that specifically permit rent withholding as a remedy for repair problems and utility shutoffs.

These remedies are discussed in their respective sections. Section 91.004(b) of the Texas Property Code gives the tenant a lien on all rent due and any property in possession of the tenant for damages caused by a landlord's breach of lease, and this provision may also serve as a basis for rent withholding.

However, it may take a judicial determination of the amount owed a tenant before the lien can be enforced. It should be noted, however, that rent withholding in violation of the Texas Property Code provisions pertaining to repair obligations and security deposits subjects the tenant to a civil penalty. See Tex, Prop. Code SS 92.058 (improper repair or improper withholding); SS 92.108 (improper withholding of last month's rent).

Cross Ref: 4-5.4.(c). Repair and Deduct, 9-5. Shutoffs Because of Landlord's Failure

1-11. Subleases and Assignments

In Texas, unlike in many other states, a tenant cannot validly sublease or assign his leasehold interest to another tenant without the landlord's prior consent unless permitted by the lease (Tex. Prop. Code SS 91.005), and the landlord's consent may be withheld in the landlord's sole discretion unless the lease provides otherwise. Reynolds v. McCullough, 739 S.W.2d 424, 429 (Tex. App.--San Antonio, 1987, writ denied); Lawther v. Super X Drugs of Texas, Inc., 671 S.W.2d 591 (Tex. App.--Houston [1st Dist.] 1984, no writ). However, if the landlord accepts rent from the new tenant, the new tenant can assert waiver of this requirement.

Subleasing or assignment in violation of the lease will give the landlord the option to terminate the lease and does not relieve the original tenant from liability under the lease, Reynolds v. McCullough, 739 S.W. 2d 424 (Tex. App. --San Antonio 1987, writ denied).

1-12 .Waiver of Tenant's Rights

Most form leases waive many tenant rights (e.g., Texas Apartment Association lease). Some of these waivers are enforceable and some are not. A tenant may, by written agreement, reduce the time period required for notice to vacate for allegedly breaching the lease (Tex. Prop. Code SS 24.005(a)) and may waive entirely or reduce the right to notice before termination of a periodic tenancy (Tex. Prop. Code SS 9 1. 00 I (e)). Public housing residents cannot waive the notice of lease termination. 24 C. F. R. SS 966.6 (1992).

A tenant may not waive the right to be free from willful exclusion and nonjudicial eviction by the landlord (Tex. Prop. Code SS 92.008(f)), or the right to be free from unlawful seizures of property by the landlord (Tex. Prop. Code SS 54.0-43(b)). Moreover, a landlord's duty or tenant's remedy concerning security deposits, security devices, disclosure of ownership, or utility cutoffs may not be waived in any way (and, with respect to the latter three, can he enlarged only by written agreement).

Tex. Prop. Code SS 92.006(a, b).

Furthermore, a landlord's duty to install a smoke detector may not be waived, nor may a tenant waive a remedy for the landlord's noninstallation of a smoke detector. The landlord's duty of inspection and repair of smoke detectors may be waived by written agreement.

Tex. Prop. Code SS 92.006(a).

A landlord's duties and tenant's remedies supplied by the habitability legislation, which requires the landlord to keep the premises free from conditions affecting health and safety, may not be waived unless:

1) the landlord only owns only one rental dwelling at the beginning of the lease;
2) at the beginning of the lease, the premises are free from conditions that materially adversely affect an ordinary tenant's health and safety;
3) at the beginning of the lease, the landlord has no reason to believe that any health or safety condition is likely to occur or recur; and
4) the agreement is in writing, for consideration, with the waiver provision in specific, clear language, and in underlined or bold print.

Tex. Prop. Code SS 92.006(e).

A landlord and a tenant may agree that, except for those conditions caused by negligence of the landlord, the tenant has the duty to pay for the following conditions that may occur during the tenancy if the agreement is in writing, for consideration, with the waiver provision in specific, clear language, and in underlined or bold print:

1) damage from wastewater stoppages caused by foreign or improper objects in lines that exclusively serve tenant's dwelling,
2) damage to doors, windows, or screens; and
3) damage from windows or doors left open.

Tex. Prop. Code SS 92.006(f).

But a tenant cannot waive rights to have the landlord repair wastewater stoppages or backups caused by deterioration, breakage, roots, ground conditions, faulty construction, or malfunctioning equipment.

Tex. Prop. Code SS 92.006(f).

A void waiver clause in a lease has no legal effect. But a void waiver clause certainly may have a psychologically intimidating effect on a tenant. For example, a tenant with the following clause in the lease may be hesitant to enforce rights under the lease: "The tenant hereby waives his right to a judicial hearing on a question as to breach of this lease and agrees that the landlord may take any action thought necessary by the landlord to regain possession of the premises from the tenant." The use of such illegal provisions in a lease may violate the Deceptive Trade Practice Act. Tex. Bus. & Corn. Code SS 17.50(a)(3).

Waiver clauses in leases are construed against the landlord, particularly when the landlord attempts to exempt himself from liability. Freight Terminals, Inc. v. Ryder System, Inc., 326 F.Supp. 881 (D.C. Tex. 1971).

Section 92.0563(b) of the Texas Property Code imposes a penalty on landlords who knowingly obtain void repair waivers from tenants:

A landlord who knowingly violates Section 92.006 by contracting orally or in writing with a tenant to waive the landlord's duty to repair under this subchapter shall be liable to the tenant for actual damages, a civil penalty of one month's rent plus $2,000, and reasonable attorney fees.

The statute places a rebuttable presumption that the landlord acted without knowledge of the violation.

1-13. Exculpatory Clauses

These clauses are closely related to waiver clauses. A clause which waives a procedural right such as the right to a jury trial is usually called a waiver clause. A clause which waives a substantive right such as the right to sue the landlord for damages is called an exculpatory clause. Exculpatory clauses are used to protect the landlord from a suit for damages suffered by the tenant or a tenant's guest. For example, Texas Apartment Association form leases have included the following language: "The owner shall not be liable for any damages or losses to person or property caused by other residents or persons. Owner is not liable for personal injury or damage or loss of resident's personal property, furniture, jewelry, clothing, etc. from theft, vandalism, fire, water, rain, storm, smoke, explosions, sonic booms, or causes whatsoever unless the same is due to the negligence of owner or owner's representative."

Texas laws are not clear on the effect that these clauses will be given. One such clause was struck down in a public housing lease while other courts have upheld them in private leases. Crowell v. Housing Authority of the City Of Dallas, 495 S.W.2d 887 (Tex. 1973); Barragan v. Munoz, 525 S.W.2d 559, 561 (Tex. Civ. App.--El Paso 1975, no writ)(case involving commercial rather than residential property).

Leases for subsidized housing where a portion of the tenant's rent is paid by the department of Housing and Urban Development (HUD) cannot contain exculpatory clauses. 24 C. F. R. SS 236.75 (1992)(section 236); 24 C.F.R. SS 221.536a(b) (1990)(section 221(d)(3)); 24 C.F.R. SS 882.219 Appendix I (1992)(section 8 certificate/existing); 24 C.F.R. SSSS 880.606, 881.606 (1992)(section 8 new/sub rehab); 24 C.F.R. SS 882.5040) (1992)(section 8 mod rehab); 24 C.F.R. SS 886.127 (1992)(section 8 set-aside); 24 C.F.R. SS 887.209 (1992)(section 8 voucher).

An exculpatory clause must be proven by the party asserting it. Rowlett v. McMillan, 574 S.W.2d 625 (Tex. Civ. App.--Houston [14th Dist.] 1978, writ ref'd n.r.e.). The validity of any particular exculpatory clause is a question that requires legal analysis beyond the scope of this chapter.

1-14. Termination of a Lease

1-14.1. General
A lease normally terminates at the end of the term stated in the lease without any additional notice being required. Bockelmann v. Marynick, 788 S.W.2d 569, 571 (Tex. 1990). Some leases provide that the lease will continue on a month to month basis unless a written termination notice is given by either the landlord or the tenant 30 days prior to the termination date. The Texas Apartment Association lease further penalizes a tenant by forfeiting the tenant's security deposit unless a written notice of termination is delivered 30 days prior to the end of the lease. But that provision must be in underlined or bold print to be enforceable, and still may not be allowed by the courts. See 2-2 Procedure to Refund.

Under certain circumstances, a lease can be terminated prior to the end of its stated term if one party fails to comply with the terms and conditions of the lease (e.g., nonpayment of rent, failure to repair, constructive eviction, illegal lockout). A lease can also be terminated by the mutual consent of the landlord and tenant. Such consent can be either express or implied. Edward Bankers and Co. v. Spradlin, 575 S.W.2d 585 (Tex. Civ. App. Houston [1st Dist.] 1978, no writ); Cannon v. Freyermuth, 4 S.W.2d 84 (Tex. Civ. App.--Dallas 1928, no writ).

Public housing leases and many subsidized leases are automatically renewed such that the owner may terminate (or fail to renew) only for serious or repeated violations of the lease or other good cause. 24 C.F.R. SS 966.4 (1992)(public housing); 24 C.F.R. SS 247 (1992)(section 236 and 221(d)(3)); 24 C.P.R. SS 882.215(c) (1992)(section 8 certificate/existing); 24 C.F.R. SSSS 880.607(b), 881.607(b) (1992)(section 8 new/sub rehab); 24 C.F.R. SS 882.511 (1992)(section 8 mod rehab); 24 C.F.R. SS 886.127 (1992)(section 8 set-aside); 24 C.F.R. SS 887.213 (1992)(voucher).

1-14.2. Termination of Periodic Tenancies:

Generally, a month to month. tenancy or other periodic tenancy can be terminated without cause. (Exceptions include terminations of public housing or subsidized housing leases which require good cause, terminations in retaliation for requesting repairs, and terminations in violation of the Fair Housing Act or other antidiscrimination statute.) The issue is generally whether proper notice of termination has been given.

If the tenant has paid rent when due and is not otherwise in default under the lease, a month to month tenant is entitled to at least 30 days prior written notice of termination, unless the lease specifies otherwise. Tex. Prop. Code SS91.001 (The same is true for a week to week or other periodic tenancy except that the amount of notice required corresponds to the rent-paying period.)

Likewise, if the tenant wishes to terminate a month-to-month periodic tenancy, the tenant is required to give the landlord advance written notice in accordance with SS 91. 001 of the Texas Property Code unless the landlord is in default under the lease (or unless the lease modifies the notice requirements of SS 91.001). If the tenant fails to give the correct notice, the tenant could be liable for an additional month of rent. The Texas Apartment Association lease further penalizes a tenant by forfeiting the tenant's security deposit. But that provision must be in underlined or bold print to be enforceable.

Tex. Prop. Code SS 92.103(b).

1-14.3. Notice to Vacate

In addition to notice of termination of the periodic tenancy (to create a holdover situation), a landlord is required to give the tenant a written notice to vacate before filing an eviction suit, regardless of the grounds upon which eviction is sought. Tex. Prop. Code SS24.005(a)(except when occupant committed a forcible entry). To be valid, this notice to vacate must be absolute and unequivocal. Johnson v. Golden Triangle Corp., 404 S.W.2d 44 (Tex. Civ. App.-Waco 1966, no writ); Schecter v. Folsom, 417 S.W.2d 180 (Tex. Civ. App.-Dallas 1967, no writ). A notice to "pay up or move out" or a notice of non-renewal will not be considered clear and unequivocal under Johnson and Schecter.

The length of time required for a notice to vacate is that set out in the lease. If no time is set by the lease then a three day notice (not a 72 hour notice) is required except in cases of foreclosure.

Tex. Prop. Code SS 24.005(a).

Most Texas Apartment Association leases provide for a one day notice, while all public housing and many subsidized housing notices to vacate (depending on the type of default) require extended notice periods.

Section 24.005(f) of the Texas Property Code governs how the notice to vacate must be delivered (and this provision cannot be modified by the lease). "The notice to vacate shall be given in person or by mail at the premises in question."

Tex. Prop. Code SS 24.005(f).

Personal delivery may be made either (i) by delivery to anyone residing at the premises who is 16 years or older, or (ii) by fixing the notice to the inside of the door of the premises. "Notice by mail may be by regular mail or registered or certified mail return receipt requested, to the premises in question." Id. at 24.005(f)(emphasis added). There is some question as to whether a notice to vacate will be effective if the notice must be retrieved at a place other than the premises (e.g., post office).

Cross Ref. 10-3. 1. Demand for Possession (Notice to Vacate)

1-14.4. Termination Based on Default

(a). Lease Provisions

Not all breaches of a lease will justify a termination of the lease. The lease must set out the specific provisions that if breached will authorize termination. Bertrand v. Pate, 284 S.W.2d 802 (Tex. Civ. App.-Eastland 1955, no writ). A demand for performance normally has had to have been made, unless waived in the lease. See I- 1 4.4. (b). Demand for Performance.

Unless termination is authorized by the lease, the only remedy is a suit for damages. Dillingham v. Willianu, 165 S.W.2d 524 (Tex.Civ.App.--El Paso 1942,writ ref'd,w.o.m.). Lease termination is not automatic, but rather is at the option of the non-defaulting party.

Exercise of that option must be evidenced by some act sufficient to indicate intent to terminate the lease. Most leases specify that the landlord will have the right to terminate the lease in the event of a default by the tenant (and they generally do not grant the tenant a reciprocal right).

These clauses will generally be interpreted to be exercisable only in the event of a material default since the law abhors a forfeiture. See Reilly v. Rangers Management, Inc., 727 S.W. 2d 527, 530 (Tex. 1987)("courts will not declare a forfeiture unless they are compelled to do so by language which can be construed in no other way"); Wendlandt v. Sommers Drug Stores Co., 551 S.W. 2d 488 (Tex. Civ. App. Austin 1977, no writ); Caranas v. Jones, 437 S.W.2d 905 (Tex. Civ. App.-Dallas 1969, writ ref'd n.r.e); Frank v. Kuhnreich, 546 S.W.2d 844, 848 (Tex. Civ. App.--San Antonio 1977, writ ref'd n.r.e.) (rejecting construction resulting in tenant's forfeiture). A termination clause which is overbroad may be unenforceable in its entirety.

(b). Demand for Performance

Unless demand for performance is waived in the lease, a party seeking to terminate the lease must usually give the other party notice of the default and a "demand for performance." For example, before a lease can be terminated for noisy conduct by the tenants, the landlord must first inform them that their actions breach their lease and give them a chance to comply by ending the conduct.

If the tenants comply, the landlord cannot terminate the lease. Unfortunately, "demand for performance" can be and is usually waived in most lease agreements. Wendlandt v. Sommers Drug Stores, 551 S.W.2d 488 (Tex. Civ. App.-- Austin 1977, no writ). Such waivers generally run only in favor of the landlord and, under most leases, "demand for performance" would still be required on the part of the tenant (e.g., repairs). A demand for performance is unnecessary, however, when there his been a constructive eviction.

(c). Refusal to Accept Performance

A party cannot create a breach of the agreement by refusing to accept the other party's performance. See Sargent v.Hightight Broadcasting Co.,466S.W.2d 866,867(Tex.Civ.App.-Austin 1971, no writ) ("[w]here the obligation of a party depends upon a certain condition being performed, and the fulfillment of that condition is prevented by the act of the other party, the condition is considered as fulfilled"). For example, a landlord cannot refuse a timely offer of rent payment and seek to terminate the lease for nonpayment. The tenant would still owe the rent and would have to be ready to pay once the landlord decided to accept, but the landlord cannot terminate on that basis.

Harris v. Ware, 93 S.W.2d 598, 600 (Tex. Civ. App.--Waco 1936, writ ref'd).

(d). Waiver of Default

Either party can waive the right to terminate, by accepting late or substandard performance. Harris, 93 S.W.2d at 600. Once is waived, the party cannot begin to insist on strict performance again until notice of such insistence is given. Cox's Bakeries of North Dakota v. Homart Develop. Corp., 515 S.W.2d 326, 329 (Tex. Civ. App.--Dallas 1974, no writ). But see Taherzaikh v. Clements, 781 F.2d 1093 (5th Cir. 1986). For example, once a landlord accepts late payments, the landlord cannot claim a tenant is in default and attempt to evict the tenant for another late payment, until the landlord gives the tenant advance notice that future late payments will be considered a default under the lease.

(e). Effect on Retaliation
A landlord's attempt to increase rent, decrease services, or terminate a month to month tenancy or unexpired lease within six months after the tenant has made a written request for repairs will constitute unlawful retaliation unless there are other good causes for the landlord's action (e.g., failure to pay rent, material breach of the lease, disturbance of other tenants, etc.,). Tex. Prop. Code SS 92.057; Sims v. Century Kiest Apartments, 567 S.W.2d 526, 532 (Tex. Civ. App.--Dallas 1978, no writ).

Cross Ref: 4-6 Retaliation for Reporting Repairs

(f). Wrongful Eviction / Termination

If a landlord wrongfully terminates the leasehold, the landlord is liable for a tort called wrongful termination or wrongful eviction. The measure of damages equals difference between market rental value of leasehold for unexpired term of lease and stipulated rentals, plus all other actual damages which are shown to have been the foreseeable consequence of the eviction. Exemplary damages are also available. Reavis v. Taylor, 162 S.W.2d 1030 (Tex. Civ. App.--Eastland 1942, writ ref'd w.o.m.); Coefficient Foundation v. Kennedy, 188 S.W.2d 694 (Tex. Civ. App.--Fort Worth 1945, no writ)(court upheld exemplary damages in a wrongful eviction case where the door and windows were locked and there was a posted eviction notice). A tenant may also be entitled to damages if the eviction was in violation of the lockout law. Byler v. Garcia, 685 S.W.2d 116, 119 (Tex. App.--Austin 1985, writ ref'd d n.r.e.). See 8-1, et seq. Lockouts and Removals.

Cross Ref. 4-6 Retaliation for Reporting Repairs, 10-9 Other Suits and Damages

1-14.5. Surrender or Abandonment of Premises

Mutual consent to terminate the lease can be implied from surrender of the premises by the tenant and acceptance of such surrender by the landlord. Edward Bankers and Co. v. Spradlin, 575 S.W.2d 585 (Tex. Civ. App.--Houston 1st Dist.] 1978, no writ); Cannon v. Freyersmith, 4 S.W.2d 94 (Tex. Civ. App. --Dallas 1928, no writ); Southmark Management Corp. v. Vick, 692 S.W.2d 157, 160 (Tex. App.--Houston [1st. Dist. 1985, ref'd n.r.e.)(court held notice to vacate for late payment during last month of lease was a termination and surrender when tenant paid rent and vacated at end of the term, such that tenant was entitled to deposit back).

Cross Ref: 1-14.3. Notice to Vacate, 10-3. 1. Demand for Possession (Notice to Vacate)

Surrender of a lease results as a matter of law when the parties have so acted that it would be inequitable for either to assert the continued existence of the lease. Ingleside Properties, Inc. v. Redfish Bay Terminal, 791 S. W. 2d 217 (Tex. Civ. App. --Corpus Christi 1990, no writ), citing Doan v. Lacy, 437 S. W. 2d 433, 438 (Tex. Civ. App.--Beaumont 1696, no writ).

As a general rule, if a tenant wrongfully abandons the leased premises and defaults in his rental obligations due under the lease, and the landlord re-enters and re-lets for his own benefit, the tenant's obligations will be considered terminated by operation of law, provided that the landlord's possession of the premises "is of an exclusive character with the intention of occupying or controlling the premises as his own to the exclusion of the tenant in case the latter desires to return. Ingleside Properties, Inc. v. Redfish Bay Terminal, 791 S.W.2d 217, 219 (Tex. Civ. App.--Corpus Christi 1990, no writ), citing Harry Hines Medical Center, Ltd. v. Wilson, 656 S.W. 2d 598, 601 (Tex. Civ. App.--Dallas 1983, no writ) and Edward Bankers & Co. v. Spradlin, 575 S.W.2d 585, 586 (Tex. Civ. App.--Houston [1st Dist.) 1978, no writ).

1-14.6. Effect of Termination

(a). Liability for Future Rents

Once a lease is terminated, the tenant's duty to pay rent ends. Rohrt v. Kelley Manufacturing Co., 349 S. W. 2d 95, 99 (Tex. 1961); Fidelity Mgt. v. Herod, 600 S. W. 2d 380 (Tex. Civ. App. -- Corpus Christi 1980, no writ). Thus, if the landlord evicts the tenant (either by legal procedures or by simply telling the tenant to leave), the landlord gives up his right to recover damages for the tenant's failure to stay the full term absent any lease provision to the contrary. The tenant owes only for back rent up to the date of eviction. This is true even if the termination by the landlord was proper (e.g., for failure to pay rent).

Some landlords try to overcome this rule with a provision in the lease which allows them to recover rents coming due even after eviction. If this provision limits such recovery to the period during which the unit is vacant, it is probably enforceable. Some "acceleration" provisions, however, provide that the landlord may sue immediately for the rentals to come due in the entire unexpired term of the lease, without regard to whether or not a new tenant is found. The latter provisions, especially when contained in printed form residential leases, are probably unenforceable, as penalties rather than valid provisions for liquidated damages. Stewart v. Basey, 245 S.W.2d 484 (Tex. 1952); Walter E. Heller and Co. v. Allen, 412 S.W. 2d 712 (Tex. Civ. App. --Corpus Christi 1967, writ ref'd n.r.e.); Christie, Mitchell and Mitchell Co. v. Selz, 313 S.W.2d 352 (Tex. Civ. App.--Fort Worth 1958, writ dism'd); c.f., Oetting v. Flake Uniform & Linen Service, Inc., 553 S.W.2d 793 (Tex. Civ. App.--Fort Worth 1977, no writ); Walter E. Heller & Co. v. B. C. &M., 543 S. W. 2d 696 (Tex. Civ. App. --Houston (1st Dist. 1 1976, writ ref'd n.r.e.).

The enforceability of such clauses depends in general upon how reasonable they are -- for example, whether they are triggered by any small breach of contract (clearly unenforceable under Stewart) or by failure to pay rent. Even the latter type of provision was held unenforceable in Christi, but it is a question on which the Supreme Court has not yet spoken. In order for a liquidated damages provision (such as a cost of reletting fee) to be enforceable, the damages must be uncertain and the stipulated amount must be reasonable. Stewart v. Basey, 245, 484 (Tex. 1952).

(b). Unenforceable Penalties

A tenant challenging a lease clause as an unenforceable penalty must plead affirmatively that it is a "penalty" and is in excess of the landlord's actual damages. Walter E. Heller and Company, 543 S.W. 2d at 697. To be enforceable, the damages from the breach must be uncertain and the stipulated amount must be reasonable. Stewart v. Basey, 245, 484 (Tex. 1952)("a party should not be awarded neither less nor more than his actual damages... . "); Thrift v. Johnson, 561 S. W. 2d 864, 869 (Tex. Civ. App. --Houston [1st Dist.] 1977, no writ) (court struck award to landlord based upon lease provision automatically awarding landlord the security deposit for tenant failing to notify landlord of surrender; court required landlord to prove damage suffered); accord Reed v. Ford, 760 S.W.2d 26, 29 (Tex. App.--Dallas 1988, no writ).

1-15. Joint and Several Liability of Cotenants

Issues regarding joint and several liability often arise when a roommate moves out. If the lease has been signed by more than one tenant, each tenant will be jointly and severally liable for all of the obligations under the lease,whether or not the tenant continues to occupy the premises. An agreement between the tenants that one of them will take full responsibility for the lease is generally not binding on the landlord unless the landlord consented to this agreement, Heflin v. Stiles, 663 S. W, 2,d 131 (Tex. App, --Fort Worth 1983, no writ). This type of agreement will generally constitute an unlawful assignment and a breach of the lease, which will give ft landlord the option to terminate the lease. See Rogers v. McCullough, 739 S.W.2d 424 (Tex. App. -- San Antonio 1987, writ den.). Once the stated term of the lease has expired, only the tenant who continues to occupy and lease the premises has liability for rent and other obligations accruing during the holdover period, provided that the lease does not require any written notice of termination. Bockelmann v. Marynick, 788 S.W. 2d 569 (Tex. 1990).

Cross Ref: 1 -I 1 Subleases and Assignments

1-16. Foreclosure or Sale of the Premises

Generally, if the landlord who originally entered into the lease agreement sells or transfers the unit to a new party, that new party is bound by the existing leases and obligations, including the return of the security deposits.

Tex. Prop. Code SS 92.105(a).

If the transfer was made in foreclosure by a mortgage lienholder, the old owner is responsible for the return of the deposits unless the new owner delivers to the tenant a signed statement acknowledging that the new owner has received and is responsible for the tenant's deposit.

Tex. Prop. Code SS 92.105.

Furthermore, if the property was sold or transferred by assignment, death, appointment of a receiver, or bankruptcy, the new owner must completely honor all the terms of the leases in effect before the transfer until their normal expiration (unless mutual consent is obtained). The rule differs for transfers made by way of foreclosure. If the foreclosed lien was superior to the tenant's lease (lien occurred prior to the lease), the purchaser at a foreclosure sale must give the tenant at least 30 days' written notice to vacate if the purchaser does not want to continue leasing to the tenant (assuming the tenant has timely paid the rent). Tex. Prop. Code SS 24.005(b).

A tenant is deemed to have timely paid the rent if, during the month of the foreclosure sale, (i) the tenant pays the rent directly to the foreclosing lienholder or purchaser no later than five days after receipt of written notice of the name and address of the purchaser who requested payment, or (ii) the tenant paid the rent to the original landlord before receiving any notice that a foreclosure sale was scheduled. (Section 24.005(b) of the Texas Property Code gives a foreclosing lienholder the right to provide a written notice directly to tenants prior to the foreclosure sale which informs the tenants that a foreclosure notice has been given to the landlord.) If the conditions which require a thirty (30) day notice do not exist, the provisions of SS 24.005(a) will control and a three-day notice to vacate will still be required unless a shorter period is specified in the lease (Tex. Prop. Code SS 24.005(a)(2)) because the foreclosing lienholder will be considered a "landlord" within the definition of SS 92. 001 of the Texas Property Code.

By accepting one month's payment of rent, a purchaser at a foreclosure sale does not waive the right to force the tenant to vacate the premises after the 30 days have expired. Unless the lease provides otherwise, the tenant also has the right to terminate the lease following foreclosure, provided the tenant has not paid rent to the new landlord. United General Ins. Agency of Midland v. American Nat. Ins. Co., 740 S.W.2d 885 (Tex. Civ. App.--El Paso 1987, no writ).

2. SECURITY DEPOSITS

2-1. Definitions and Overview

A security deposit is "any advance or deposit of money, other than an advance payment of rent, that is intended primarily to secure performance under a lease of a dwelling." Tex. Prop. Code SS 92.102. This language is broad enough to include general security deposits and pet deposits.

Texas law does not impose a duty on landlords to put these funds in escrow or award tenants interest on their deposits. Landlords engaged in public housing or subsidized housing may have different duties.

The general principle set out by the Code is that unless the tenant has breached the rental agreement or substantially damaged the rental premises, no deductions should be allowed from the security deposit, and the deposit should be returned to the tenant within 30 days of moving out. If the landlord withholds any portion of the deposit, the landlord must give the tenant a written description and itemized list of all deductions within 30 days of the tenant's surrender of the premises.

The landlord may not deduct from the security deposit for damage caused by "normal wear and tear".
Tex. Prop. Code SS 92.104(b).

Normal wear and tear is defined as "deterioration that results from the intended use of a dwelling, including breakage or due to age or deteriorated condition, but the term does not include deterioration that results from negligence, carelessness, accident, or abuse of the premises, equipment, or chattels by the tenant, by a member of the tenant's household, or by a guest of the tenant." Tex. Prop. Code SS 92.001(4). Reasonable nail holes, floor marks, and worn carpet all should he considered normal wear and tear.

Tenants of public housing and subsidized housing are usually required to post a security deposit. It generally cannot exceed one month's rent ($50 min). 24 C. F. R. SS 966.4(b)(5) (1992)(public housing); 24 C. F. R. SS 886.116 (1992)(section 8 set-aside); 24 C.F.R. SS 882.112 (1992)(section 8 certificate/existing); 24 C.F.R. SS 880.608 (1992)(section 8 new/sub rehab); 24 C.F.R. SS 882.401(d) (1992)(section mod rehab). Landlords in many of these programs must keep the deposits in separate accounts, and must return the deposit with interest (less any proper deductions).

2-2. Procedure to Refund

There are several steps which a tenant must go through before the landlord is legally liable for the return of the deposit. First, the tenant should give advance written notice of plans to vacate the premises. The tenant should save a copy of the notice for proof of its delivery. Many leases require a one month advance notice, even if the tenant is surrendering the premises at the scheduled termination date (e.g., Texas Apartment Association lease). These provisions must be underlined or in conspicuous bold print to be enforceable. Tex. Prop. Code SS 92.103(b). However, the court in Thrift v. Johnson, 561 S.W.2d 864, 869 (Tex. Civ. App.--Houston 1st Dist.] 1977, no writ) struck an award to a landlord based upon the corresponding lease provision that automatically forfeited the deposit for failing to give advance notice of surrender. The court reasoned that this was a penalty clause, and required the landlord to prove actual damages before being allowed to recover. Accord Reed v. Ford, 760 S.W.2d 26, 29 (Tex. App.--Dallas 1988, no writ); contra Sovereign Management Corp, v. Stanford, 594S.W.2d 553 (Tex. Civ. App.--Waco 1980, no writ)(court holds lease provision enforceable and entities landlord to retain the full deposit though the actual damages admittedly lower).

In one case, a lease in which only the two words "WRITTEN NOTICE" were printed in all capital letters. A Houston appeals court held that even if all capitals satisfied the "conspicuous bold print" requirement, strict interpretation of the statute would require the entire provision to be in such conspicuous print, not just key words or phrases.

In this case, the tenant was entitled to return of the deposit, but the Court did not find that the landlord had acted in bad faith. Minor v. Adanis, 694 S.W. 2d 148, 150 (Tex. App.--Houston [14th Dist.] 1985, no writ). These clauses do not require that the tenant notify the landlord of an intention to stay in the dwelling and proceed on a month to month in order to retain the deposit. Reed v. Ford, 760 S.W.2d 26 (Tex. App.--Dallas 1988, no writ).

Second, a tenant must furnish the landlord with a written copy of the tenant's forwarding address for the purposes of returning the security deposit. Tex. Prop. Code SS 92.107(a). The form of the forwarding address must reasonably put the landlord on notice of the tenant's new address. Michaux v. Koebig, 555 S.W.2d 171, 175 (Tex. Civ. App. --Austin 1977, no writ)(court held that address on rent checks not sufficient for-warding address, especially since checks do not become part of the tenant's file); Walker v. Rabke, 550 S.W.2d 168, 170 (Tex. Civ. App.--Fort Worth 1977, no writ)(court held that letter from tenant requesting the return of the deposit to be sufficient).

Once these two steps have been taken, the landlord is obligated to return the security deposit or furnish a written description of damages and charges which were deducted from the security deposit within 30 days of the move out date.

Tex. Prop. Code SS 92.103(a),

The tenant never forfeits the right to a refund of the security deposit or the right to receive a description of deductions for mere failure to give a forwarding address to the landlord. Tex. Prop. Code SS 92.107(b). In Johnson v. Huie Properties, the Court held that an attorney's demand letter, which had no return address and gave only the tenant's former address, was insufficient to entitle the tenant to return of his deposit. Johnson v. Huie, 594 S.W. 2d 488, 490 (Tex. Civ. App.--Dallas 1979, no writ); compare Tammen v. Page, 584 S.W.2d 914 (Tex. Civ. App.--Eastland 1979, writ ref'd n.r.e.)(court held demand letter from attorney, which listed attorney's address and requested that deposit be delivered to his office was sufficient).

The landlord probably has 30 days from receipt of the forwarding address to return either the security deposit or a list of deductions. Minor v. Adams, 694 S.W. 2d 148, 151 (Tex. App.--Houston [14th Dist.] 1985, no writ).

Exception: The landlord is not required to give tenant a description and itemized list of deductions if the tenant owes rent (in an amount at least equal the deposit) at the time of surrendering possession of the premises, and there is no controversy about the amount of rent owed. Tex. Prop. Code SS 92,104(c).

Cross Ref: 1-14.7.(b) Unenforceable Penalties

2-3. Penalties for Non-Compliance

The deposit statute found within the Texas Property Code provides a remedy and a penalty, not for the return of a security deposit, but for the bad faith retention of the deposit. Section 92.103(a) states that the security deposit must be refunded within 30 days after the tenant surrenders the premises.

Failure to provide the deposit or written description and list of deductions within 30 days is presumed bad faith. Tex. Prop. Code SS 92.109(d); Wilson v. O'Connor, 555 S.W.2d 776 (Tex. Civ. App.--Dallas 1977, writ dism'd.)(prior to statute). Likewise, a landlord who supplies a list of deductions within the 30 days that are fraudulent or unreasonable can still be held in bad faith.

Bad faith requires an intent to deprive the tenant of an amount lawfully due, which can be inferred from the circumstances. Alltex Construction, Inc. v. Alareksoussi, 685 S.W.2d 93 (Tex. App.--Dallas 1984, writ ref'd n.r.e.); Reintsma v. Greater Austin Apt. Maintenance, 549 S.W.2d 434, 437 (Tex. Civ, App. --Austin 1977, writ dism'd.)(court held prolonged refusal, without excuse or reason was bad faith).

Even if the landlord does not furnish a written description or return the security deposit within 30 days, the landlord still has the opportunity and burden to rebut the presumption to prove there was no bad faith and that withholding the deposit, and/or the delay in supplying the deduction list was reasonable. Tex. Prop. Code SS 92.109(c); Wilson v. O'Connor, 555 S.W.2d 776 (Tex. Civ. App.--Dallas 1977, writ dism'd.)(court held that the mere retention of the deposit or withholding of the itemized list beyond 30 days, though intentional, does not conclusively establish bad faith or dishonest disregard of the tenant's rights).

A landlord who in bad faith retains the security deposit is liable for $ 100.00 plus triple the amount of that portion of the deposit which was wrongfully withheld, and reasonable attorneys' fees.

Tex. Prop. Code SS 92.109(a)

A landlord who in bad faith fails to give a list of deductions forfeits the right to withhold any portion of the security deposit or to bring suit against the tenant for any damages to the premises. Tex. Prop. Code SS 92.109(b)(1).

A landlord who has acted in bad faith may also be liable under the Deceptive Trade Practices Act. Tex. Bus. & Corn. Code SS 17.50(a)(3). The tenant may have to prove that the landlord's action was a part of some continuing practice or scheme or that the landlord lacked intention to refund the deposit at the time the obligation to do so was made. See Holloway v. Dannenmaier, 581 S.W.2d 765, 767 (Tex. Civ. App.--Fort Worth 1979, writ dism'd).

2-4. Non-Refundable "Deposits" and Fees

More and more landlords are using written agreements which rename a portion of the security deposit as an advance payment for required cleaning to prepare the apartment for the next rental. This makes such portions of the security deposit non-refundable. See Holmes v. Canlen, 542 S. W. 2d 199 (Tex. Civ. App. --El Paso 1976, no writ)(court held a $40 painting and cleaning fee was either advance rent or consideration for executing a lease,but not a security deposit).

A landlord cannot retain security deposit funds for damages caused by normal wear and tear. Tex. Prop. Code SS 92.104(b). Because painting corrects damages caused by normal wear and tear, the Holmes decision may be incorrect because SS 92.006(a) of the Texas Property Code voids any provision of an oral or written agreement which would waive the landlord's duty or the tenant's remedy concerning security deposits.

2-5. Changes in Ownership

Section 92.105 sets out liability of prior and subsequent owners for security deposit claims. If a change in ownership of the rental property occurs, the new owner is liable for the return of the security deposit from the day title to the premises is acquired.

Tex. Prop. Code SS 92.105(a).

This rule does not apply to a real estate mortgage lienholder who acquires title by foreclosure. The former owner remains liable for the security deposit received during ownership, until the new owner delivers to the tenant a signed statement acknowledging that the new owner has received and is responsible for the tenant's security deposit and specifying the dollar amount of the deposit.

Tex. Prop. Code SS 92.105(b).

Cross Reference: Sale of Premises, 1-14.

2-6. Other Issues

A tenant's eventual receipt of the security deposit check (and cashing it) does not bar him from suing the Landlord for bad faith retention. See Fikes v. Tull, 580 S.W.2d 911, 912 (Tex. CW. App.--Amarillo 1979, nowrit) (court held that landlord was in bad faith and subject to treble damages and other penalties after he refunded entire deposit 23 days late, even though tenant had accepted and cashed the tardy refund check).

Because the deposit statute provides penalty for a mere failure to comply with statute (not a remedy to merely retrieve the deposit), the legal principles surrounding accord and satisfaction should not apply. [If accord and satisfaction does apply, disregarding Fikes, Texas case law is mixed on whether the cashing of a check acts to bar a subsequent claim, even with restrictive endorsements placed on the check. See Robinson v. Garcia, 804 S.W. 2d 23 8 (Tex. App.--Corpus Christi 1991, no writ history) and Hixson v. Cox, 633 S.W,2d 330 (Tex. Civ. App.--Dallas 1982, writ ref'd d n. r. e.)].

The tenant's claim to the security deposit takes priority over the claim of any other creditor of the landlord except a trustee in bankruptcy.

Tex. Prop. Code SS 92.103(c).

Section 92.106 requires the landlord to keep accurate records of all security deposits. The landlord is free to use the deposit in any fashion, and is not currently required to keep the funds in a separate account. The landlord also does not have to pay the tenant any interest on the deposit.

The tenant may not withhold payment of any portion of the last month's rent on grounds that the deposit is security for the unpaid rent. Tex. Prop. Code SS 92.108(a). A tenant that does is presumed to have acted in bad faith, which if proved, exposes the tenant to treble damages.

Cross Ref: 1-8 Rent and Nonpayment Issues, 1-9 Withholding Rent

3. LANDLORD'S LIENS

3-1. Overview

Section 54.041 of the Texas Property Code gives every landlord of a rental unit a lien on all non-exempt property found within the rental unit or storage room for unpaid rent. Section 54.042 exempts various types of property from the lien.

In the absence of a proper written agreement allowing self-help enforcement, the lien in SS 54.041 cannot be enforced without judicial action.

Tex. Prop. Code SS 54.044.

A landlord who proceeds without a proper contractual agreement and without using the judicial process is at least liable for conversion, and other damages provided in SS 54.046 of the Texas Property Code. The rights and remedies concerning landlord's liens found within the Property Code cannot be waived.

Tex. Prop. Code SS 54.0-43(b).

The original landlord's lien statute, article 5238a of the Texas Revised Civil Statutes, was held unconstitutional as being contrary to the due process of law clause of the United States Constitution. Hall v. Garson, 468 F. 2d 845 (5th Cir. 1972). The Texas legislature replaced it with article 5236d, which was later recodified in the Texas Property Code SS 54.041, et seq., in 1983. Another possible due process challenge to the statute questions whether a landlord may nonjudiciary lien nonsignatories to the lease agreement (i.e., property of other occupants, children).

Note: Some leases with a private landlord and all public housing leases with a public housing authority subsidized by the department of Housing and Urban Development (HUD), cannot include a landlord's lien provision. See 24 C.F.R. SS 966.6 (1992)(public housing); 24 C.F.R. SS 882.219 (1992)(section 8 existing/certificate program); 24 C.F.R. SS 882.5040) (1992)(section 8 moderate rehab.); and 24 C.F.R. SS 887.209 (1992) (voucher program).

3-2. Requirements and Procedure for Enforcement

The lease agreement may allow for enforcement of the lien without judicial action. In this case, the lien and its means of enforcement must be completely set out in the lease. There is no "implied" right of entry or "implied" right to seize the property. Kolbo v. Blair, 379 S.W.2d 125 (Tex. Civ. App.--Corpus Christi 1964, writ ref'd d n.r.e.).

If the landlord fails to follow the lease procedure or uses any kind of force or violence, the landlord is liable under the statute. Tex. Prop. Code SS 54.044(a)(landlord may seize nonexempt property only if accomplished without a breach of the peace). The lien provision must also be underlined or in bold print to be enforceable.

Tex. Prop. Code SS 54.043.

The lien can be used only when the tenant is behind on the rent, not other charges. See Tex. Prop. Code SS 54.0-43(b)(a provision of a lease that purports to waive or diminish a right or exemption found within the statute is void).

Some landlords attempt to first apply rent funds conveyed by the tenant to other "accounts" such as late fee accounts or damage accounts, and then apply the remainder to the rental account -- such that the tenant still owes rent (subjecting the tenant to the threat of a landlord's lien).

This action may be provided for in the lease agreement, but it is clearly unconscionable. Moreover, if a lien is taken in these circumstances it is of the statute, as the lease provision allowing discretionary application of funds is void in so far as it diminishes a right of the tenant (i.e., prohibiting a lien based upon nonpayment of other charges).

Tenants who have fallen victim to the landlord's lien often complain that the landlord liened too much property compared to the amount of rent owed. Unfortunately, the Texas Property Code does not express the amount of property that is allowed to be taken. In general, the tenant values the property higher than the landlord; however, the reasonable market value of the property must be considered. A reasonable standard that will probably be upheld by the courts would allow a landlord to lien up to three times the amount of the rent owed.

After properly seizing the property the landlord must immediately leave a written notice of entry, an itemized list of the property removed, the amount of the delinquent rent, the name, address, and telephone number of the person to whom payment should be made, and a notice stating that the property will be promptly returned upon full payment.

Tex. Prop. Code SS 54.044(b).

Unless authorized in a written lease, the landlord is not entitled to collect a charge for packing, removing, or storing property seized. Tex. Prop. Code SS 54.044(c).

If a tenant's property is properly seized under a valid contractual lien clause, there is not much to be done except tender the rent owed. However, if a suit for unpaid rent is pending, a tenant can reply any property that has been seized that has not been claimed or sold by posting a bond approved by the court.

Tex. Prop. Code SS 54.048.

The landlord has a duty to take proper care of the property while it is in the landlord's possession. Alsbury v. Linville, 214 S.W. 492 (Tex. Civ. App.--San Antonio 1919, writ dismissed).

The tenant may redeem the property at any time before it is sold by paying all delinquent rents, and if authorized in the lease, all packing, moving, and storage fees.

Tex. Prop. Code SS 54.045(e).

3-3. Exempt Property

Exempt items usually fall into three categories:

1) they are considered essential to the tenant's health or occupation;
2) they are owned by someone other than the tenant; or
3) they have no reasonable value to anyone other than the tenant.

However, there is no limitation on any exemption based upon the value of the necessity to the family or the use of the property to which the exemption applies. Causey v. Catlett, 605 S.W. 2d 719, 720 (Tex. Civ. App.--Dallas 1980, no writ).

Section 54.044 exempts the property listed in SS 54.042 from any landlord's lien:

1) wearing apparel;
2) tools, apparatus, and books of a trade or profession;
3) schoolbooks;
4) a family library;
5) family portraits and pictures;
6) one couch, two living room chairs, and a dining table and chairs;
7) beds and bedding;
8) kitchen furniture and utensils;
9) food and foodstuffs;
10) medicine and medical supplies;
11) one automobile and one truck;
12) agricultural implements;
13) children's toys not commonly used by adults;
14) goods that the landlord knows are owned by a person other than the tenant or an occupant; and
15) goods that the landlord knows are subject to a recorded chattel mortgage or financing agreement.

The Texas Apartment Association's own handbook has defined kitchen utensils to include microwaves, and defined clothing to include watches and rings. Redbook, at 9, 1987 (based on a DC Circuit opinion). A deep freeze is included within the meaning of kitchen furniture and utensils. Causey v. Catlett, 605 S.W.2d 719, 720 (Tex. Civ. App.--Dallas 1980, no writ).

If a landlord has seized exempt items, a written notice should be sent, explaining the violation, and giving the landlord an opportunity to cure. If the item is exempt under (14) and (15), affirmative action or at least a statement from the owner or lienholder may be necessary to give the landlord knowledge to constitute a willful violation as required by the statute.

Landlords rarely seize all available nonexempt property. They are usually just after the items with a high resale value (e.g., stereos, televisions, VCRs, etc.).

3-4. Sale of Property

If a landlord has properly seized property pursuant to a valid lien provision, then that property can be sold to satisfy the landlord's claim for delinquent rentals. However, if the landlord seized the property pursuant to a lease agreement, the property may not be sold unless that is also authorized in the agreement.

Tex. Prop. Code SS 54.045(a).

The landlord must give the tenant notice not later than the 30th day before the date of the sale by regular and certified mail to the tenant's last known address.

Tex. Prop. Code 54.045(b).

The notice must contain: the date, time, and place of the sale; an itemized account of the amount owed to the landlord; the name, address, and telephone number of the person the tenant can contact regarding the sale; and the right of the tenant to redeem the property.

Tex. Prop. Code SS 54.0-45(b).

The property is sold to the highest cash bidder, and the proceeds are first applied to a recorded chattel mortgage or financing statement (which would also be exempt property), then to delinquent rents and, if authorized by written agreement, reasonable packing, moving, storage, and sale costs.

Tex. Prop. Code SS 54.0-45(c).

Any sale pr remaining must be mailed to the tenant not later than the 30th day after the date of the sale. The landlord must provide the tenant with an accounting of all pr of the sale not later than the 30th day after the tenant makes a written request for the accounting.

Tex. Prop. Code SS 540-45(d).

3-5. Abandonment

Abandonment of the property is a defense for the landlord to an unlawful seizure claim. If a tenant has abandoned the premises, the landlord may remove the contents. Tex. Prop. Code SS 54.044(d). Property is abandoned if the tenant leaves the premises and the property with the intent to leave it and not return. This intent can be shown through circumstantial evidence. Many leases raise a presumption of intent to abandon if the tenant is absent from the premises for three days and the rent is due and unpaid. The validity of this "presumption" has not been raised in any reported case.

3-6. Penalties for Violation

If a landlord or agent willfully violates the law enumerated in the Property Code concerning landlord's liens, the tenant is entitled to: actual damages, return of any property seized that has not been sold, return of the proceeds of any sale of seized property, and the greater of one month's rent or $500, less any amount for which the tenant is liable, and attorney fees.

Tex. Prop. Code 54.046.

Willfully in this context means "without reasonable ground to believe the act lawful". City of Baird v. West Texas Utilities Co., 145 S.W.2d 965 (Tex. Civ. App.--Eastland 1940, writ dism'd judgment. cor.). This definition does not require that the actor know the act to be unlawful. Causey v. Catlett, 605 S.W.2d 719, 720 (Tex. Civ. App.--Dallas 1980, no writ)(court reversed trial court and held landlord willfully violated statute when landlord had a copy of the statute and generally understood its meaning).

Section 54.047 expresses that the Property Code sections do not affect or diminish any other rights or obligations arising under common law or statute. Damages for conversion should be sought in addition to above mentioned statutory penalties. See Johnson v. Lane, 524 S.W. 2d 361, 364 (Tex. Civ. App.--Dallas 1975, no writ)(awarding conversion damages after landlord refused to return property after tenant had made appropriate offer). It makes no difference that possession was originally acquired by lawful means to constitute conversion. Hull v. Freedman, 383 S.W.2d 236, 238 (Tex. Civ. App.--Fort Worth 1964, writ ref'd n.r.e.).

In determining specific damage amounts, remember that the loss of marketable chattels possessed for sale is determined by its market value, while the loss of chattels possessed for the comfort and well-being of the owner is determined by the value of its use to the owner. Crisp v. Security National Ins., 369 S.W.2d 326, 329 (Tex. 1963).

For example, the court held in Jay Fikes & Associates v. Walton, 578 S.W.2d 885, 887 (Tex. Civ. App.-Amarillo 1979, writ ref'd d n.r.e.) that the tenant was not merely entitled to what the converted stereo could have been sold for in the market, but rather what its actual value was to the tenant (in this case the court found that amount to be the original purchase price).

Therefore, when pleading damages in conversion be sure to allege that the items converted were personal items and to ask for the return of the property with interest on the value, or the personal value of the property. Also ask the court for an award of exemplary damages when the landlord discloses an entire want of care or conscious indifference to the rights of the tenant. See Jay Fikes, at 888; Bennett v. Howard, 170 S.W.2d 709, 713 (Tex. 1943).

Damages for mental anguish may be difficult to obtain for violations of the statute or conversion absent extraordinary circumstances. See Otten v. Snowden, 550 S.W.2d 758, 760 (Tex. Civ. App.--San Antonio 1977, no writ)(court held that mental anguish does not constitute an element of damages that may be recovered in an action either for breach of contract or for a tort founded on a right growing out of a breach of contract).

An action brought under the Deceptive Trade Practices Act should also be considered.

4. REPAIRS

4-1. Generally

One of the most common and most urgent tenant problems faced by tenants is the landlord's failure to maintain the premises. While the slumlord is thought of as the usual offender, larger "quality" landlords often fail to meet the reasonable expectations of their tenants. There are several sources of a landlord duty to repair.

4-2. Express Agreements to Repair

Some form leases such as the Texas Apartment Association's lease impose a landlord duty to repair and maintain the premises. The landlord may make an express oral or written representation that the premises are fit, and promise repairs to induce the tenant to rent. Actual or threatened rent withholding may extract an enforceable promise to repair and maintain. Stacks v. Rushing, 518 S.W.2d 611 (Tex. Civ. App.--Dallas 1974, no writ). However, this practice has its risks. See 1-10. Rent Withholding.

An express written or oral lease provision to repair and maintain is enforceable in court. An express representation of fitness or promise to repair, even if made orally only, may be enforceable and liability under the Texas Deceptive Trade Practices Act may be found. See 4-1 1. DTPA and Repairs.

4-3. City Codes

Many cities have some type of housing code which imposes a duty to keep the premises in compliance with minimum standards of fitness. If the city has local housing or health codes and the landlord fails to comply, then the tenant may be able to secure repairs by complaining to the proper city authorities. The tenant may be able to enforce the code in Court on the tenant's own behalf. This will depend on the wording of the code.

The city of Dallas has recently enacted an ordinance (#20578) mandating landlords to maintain heating equipment capable of maintaining a minimum inside temperature of 68 degrees from November 1 through April 15; and if screens are not provided, landlords must maintain refrigerated air equipment capable of maintaining a maximum inside temperature that is 20 degrees lower than the outside temperature or 85 degrees, whichever is warmer, from May 1 through October 15.

4-4. Constructive Eviction

In the past, failure to repair was sometimes held to constitute a constructive eviction. This doctrine may have been partially replaced by the new habitability statutes on the duty to repair. Section 92.061 of the Texas Property Code indicates that "the duties of a landlord and remedies of a tenant ... are in lieu of existing common law and other statutory law warranties and duties of landlords for maintenance, repair,.... Otherwise this subchapter does not affect any other right ... ."

Constructive eviction is a tort and allows a tenant to immediately terminate a lease, and sue for damages. Charalambous v. Jean Lafitte Corp., 652 S.W.2d 521, 526 (Tex. App.--El Paso 1983, writ ref'd r.n.e.). A constructive eviction occurs if all of the following four elements are present:

1. The landlord commits an act which substantially interferes with the use for which the premises are intended.
2. The landlord's intent is that the tenant should no longer use or enjoy the premises. Intent can be implied from the facts and circumstances.
3. The act results in a permanent deprivation of use and enjoyment.
4. The tenant abandons the premises within a reasonable time.

Richker v. Georgandis, 323 S.W.2d 90 (Tex. Civ. App.--Houston 1959, writ ref'd n.r.e.); Huddelston v. Pace, 790 S.W.2d 47 (Tex. App.--San Antonio 1990, writ denied). The court in Michael v. Koebig, 555 S.W.2d 171 (Tex. Civ. App. -- Austin 1977, no writ) held that just because the landlord put a notice to vacate on the door of the tenant's dwelling (and towed the tenant's cars), this did not constitute constructive eviction. The court cited no harassing incidents interfering with the peaceful possession of the premises, and stated, "[mere] notice to quit, followed by peaceful vacation of the premises, is not sufficient to constitute a claim of constructive eviction." 555 S.W.2d at 177.

If constructive eviction is found to exist, the measure of damages equals the difference between market rental value of leasehold for unexpired term of lease and stipulated rentals, plus all other actual damages which are shown to have been the foreseeable consequence of the eviction. Reavis v. Taylor, 162 S.W.2d 1030 (Tex. Civ. App.-Eastland 1942, writ ref'd w.o.m.).

The requirement of abandonment usually makes this remedy difficult to use.

4-5. Habitability Legislation

The habitability legislation, passed on the last day of the 1979 regular session, is a compromise between the landlord and tenant interests. Some effective remedies are provided for tenants, but the procedural steps the tenant must take to qualify for the remedies are complicated. Community education efforts and legal assistance to tenants seeking remedies will be crucial to successful use of these statutes for improvement of housing conditions.

4-5. 1. Landlord Duties

A landlord must make a diligent effort to repair or remedy a condition if.

1) the tenant specifies the condition in a notice to the landlord;
2) the tenant is not delinquent in the payment of rent at the time the notice is given; and
3) the condition materially affects the physical health or safety of an ordinary tenant.

Tex. Prop. Code SS 92.052(a).

There is no duty to repair under this provision unless the condition materially affects the health and safety of an ordinary tenant. Problems like sewage backups, severe roaches, rats, no hot water, faulty wiring, roof leaks, and sometimes lack of air conditioning or heating can be considered health and safety risks. [The Dallas Court of Appeals held that a landlord was negligent in failing, after repeated requests, to provide working window locks, and that his negligence was the proximate cause of the tenant's rape by an intruder. Benser v. Johnson, 763 S.W. 2d 793 (Tex. App.--Dallas 1988, writ denied).]

City housing codes can be used to provide meaning to the statutory standard; thus if the condition violates a city code, it probably falls within the meaning of the statute (see, City Codes, 4-3). In cities where housing codes have been enacted, the tenant should call on cities' enforcement officers to inspect the rental unit (in Dallas, Neighborhood Services). They can issue citations, and encourage compliance. They also can later be called as witnesses. In areas not covered by housing codes, the laws of any Texas city should still be some evidence of what constitutes a condition which violates health and safety.

The standard for health and safety is an objective one -- the ordinary tenant. Tenants with special disabilities or sensitivities may not have a remedy under this legislation. However, fair housing laws may provide some protection for those classified as handicapped. Also, the universe used to determine the "ordinary tenant" should be the tenants in the particular complex or local area, and not all the tenants of the state.

If the condition does not affect the health or safety of the ordinary tenant (dirty carpet, malfunctioning dishwasher), then the habitability legislation will not provide a remedy. Negotiation with the landlord is probably the fastest, and most practical solution. Other statutes, or actions (e.g., breach of contract) may provide the legal remedy, but will undoubtedly be more difficult to construct.

4-5.2. Exceptions to Landlord Duties

The landlord generally has no duty to repair conditions caused by the tenant, a guest of the tenant, or lawful occupant. The landlord must repair any condition caused by normal wear and tear, if the condition materially affects the physical health or safety of an ordinary tenant.

Tex. Prop. Code SS 92.052(b).

The landlord is not required to furnish utilities from a utility company if the utility lines are not reasonably available, and the landlord has no duty to provide security guards.

Tex. Prop. Code SS 92.052(c)(1-2).

The tenant may be able to waive specific rights and duties provided by the statute. Tex. Prop. Code SS 92.006(c). For a complete discussion of the requirements for a valid waiver consult Waiver of Rights, 1-11.

4-5.3. Prerequisites for Tenant Remedies

Availability of tenants' remedies under the statute is restricted by the following procedural prerequisites.

a) Notice - The tenant must give notice of the condition to the person or place where rent is normally paid. A written lease provision may specify that the notice must be in writing. Tex. Prop. Code SS 92.052(d). It is a good idea to put the notice in writing anyway, and to keep a copy for purposes of proof.

b) Rent - The tenant was not delinquent in paying rent at the time all notices were given. Tex. Prop. Code SS 92.052(a)(2). The landlord's failure to repair is not a defense for nonpayment. Tex. Prop. Code SS 92.059.

Further, the landlord can evict and also file suit against the tenant who wrongfully withholds rent and can recover civil penalties. Tex. Prop. Code SS 92.058. Rent withholding is discussed further at 1-13.

c) Reasonable time for repairs - The landlord must be given a reasonable time, after notice, to make the repairs, considering the availability of labor, parts, etc. Tex. Prop. Code SS 92.056(a)(3).

d) Second demand by the tenant - Once a reasonable time for completion of repairs has passed, the tenant must send another demand letter, stating the intention to terminate the lease, file suit, and/or utilize repair and deduct remedies if repairs are not made within 7 days. Tex. Prop. Code SS 92.056.

e) Burden of proof - In a lawsuit under the act, the tenant must normally prove that the foregoing prerequisites have been met; that the condition materially affects health and safety; and that the landlord has failed to make a diligent effort to repair.

However, if the tenant makes written demand for an explanation for failure to make repairs, and the landlord fails to respond in writing within five days, then the burden of proof shifts to the landlord to show that the landlord made a diligent effort to repair and/or that a reasonable time for repair has not elapsed. Tex. Prop. Code SS 92.05 3. This demand can be included in the second notice letter.

4-5.4. Tenant Remedies

Once the tenant has jumped through the numerous procedural hoops, the tenant may:

terminate the lease if the condition is not remedied within seven days after the tenant's notice to terminate;

obtain judicial remedies if the condition is not repaired within seven days after the tenant's notice to elect judicial remedies;

have the condition repaired, and

deduct the amounts from the tenant's rent without the necessity of judicial action after waiting one to seven days from the tenant's notice to elect repair and deduct. Tex. Prop. Code SS 92.056(b).

(a). Termination of Lease: A tenant who elects to terminate the lease is:

entitled to a pro rata refund of rent from the later date of termination or the date the tenant moves out;

entitled to deduct the tenant's security deposit from the rent with judicial action or

entitled to the refund of the deposit.

Tex. Prop. Code SS 92.56(c).

Cross Ref: 2 Security Deposits
1-9 Rent Withholding

(b). Judicial Remedies: Injunctive relief - The landlord may be ordered to repair the rental unit, and rent may be reduced in proportion to the decrease in rental value until repairs are made. Tex. Prop. Code SS 92.0563(a)(1-2). Note: The justice court may not order repairs.

Money damages - The tenant may also recover actual damages, and a civil penalty in the amount of one month's rent plus $500.00.

Tex. Prop. Code SS 92.0563(a)(3-4).

Actual damages begin from the first notice to the landlord. Waldon v. Williams, 760 S.W.2d 833, 835 (Tex. App.--Austin 1988, no writ).

Costs - The statue provides for reasonable attorney fees and court costs to the prevailing party in any action brought pursuant to the statute. Attorney fees may not be awarded in suits to recover damages for personal injuries.

Tex. Prop. Code SS 92.0563(a)(5).

(c). Repair and Deduct

WARNING: This remedy has numerous exceptions and stipulations. Before advising a client to utilize this remedy be sure all the prerequisites are met as per the exact language of the statute -- Texas Property Code SS 92.0561, et seq.

The tenant may contract with an independent commercial contractor (totally unaffiliated with the tenant) to make repairs of the conditions, after appropriate notices were given in writing. The tenant can only deduct up to one month's rent. The remedy is available only when the landlord has failed to remedy: sewage problems; lack of water problem; inadequate heating or cooling equipment and the landlord has been noticed by a housing official that the condition affects health or safety; or any other condition that the landlord has been notified by a housing official that affects health or safety.

After the second notice, the tenant must wait one to seven days before contracting to have the condition repaired. For sewage problems the statute indicates the tenant can repair immediately, however, waiting one day is probably the best course of action. For water, heating, and air conditioning problems the tenant must wait three, and seven days for all other problems.

If the landlord begins, or is attempting to repair the condition, or has made an affidavit of delay pursuant to SS 92.0562 of the Property Code, then the tenant cannot legally exercise repair and deduct.

4-6. Retaliation for Reporting Repairs

If a tenant gives a landlord a notice to repair or exercises any legal remedy for a landlord's failure to repair, the landlord may not, within six months from the date of the repair notice, retaliate against the tenant by:

1) filing an eviction except for reasons listed below;
2) depriving the tenant of use of the premises except where authorized by law;
3) decreasing services to the tenant; or
4) increasing the tenant's rent or terminating the tenant's lease.

Tex. Prop. Code SS 92.057(a).

A repair notice does not guarantee six months of occupancy. Even if the landlord's subjective motive is retaliation, the landlord can still evict the tenant if any of the following conditions exist:

1) the tenant is delinquent in rent at the time of the landlord's notice to vacate or at the time the eviction is filed;
2) intentional property damage by the tenant, tenant's family, guests or invitees;
3) threats by the tenant, tenant's family, guests or invitees, to the personal safety of the landlord, the landlord's employees, or other tenants;
4) material breach of the rental agreement, other than holding over by the tenant at the end of the lease term. The exception for holding over may effectively give the tenant a six-month lease where the landlord has violated the statute (see discussion below);
5) where the tenant has held over after he gave notice of termination;
6) where the landlord's termination notice precedes the tenant's notice for repairs; or 7) where the tenant has held over and the landlord's termination notice is based on a good-faith belief that the tenant may cause damage, interfere with other tenants, etc.
Tex. Prop. Code SS 92.057(c).

Rent increases are not always grounds for retaliation if:

1) the increase in rent was made pursuant to an escalation clause in a written lease for increases in utilities, taxes or insurance; or
2) the increase in rent or reduced services was made where the change is part of a pattern of charges for an entire apartment complex.

Tex. Prop. Code SS 92.057(b).

The tenant who is the victim of retaliation by the landlord has at least two remedies:

1) The tenant may be able to use it as a defense in an eviction suit. Tex. Prop. Code SS 92.059. Section 92.059 of the Texas Property Code was amended in 1989 and appears to only allow retaliation as a defense to eviction in a nonpayment of rent case. This literal interpretation should not be followed. This defense should be asserted even for a landlord's failure to renew a tenancy (e.g., month to month), even though possession is not expressly awarded in the statute. Compare Sims v. Century Kiest Apartments, 567 S.W.2d 526, 532 (Tex. Civ. App.--Dallas 1978, no writ)(decided before statute enacted; court explained public policy of protecting tenants from retaliation and recognized retaliation as actionable). In Sims, the court found ample reasons to extend a cause of action to a tenant who had been the victim of retaliation; however, the court was hesitant to hold that retaliation could be used as a defense to an eviction.

2) The tenant can sue and recover one month's rent, plus $500.00, plus any moving expenses, court costs, plus attorneys' fees. Tex. Prop. Code SS 92.057(d).

4-7. Severe Casualty

Section 92,054 of the Texas Property Code provides the landlord with a substantial loophole where the defective condition which would otherwise violate the statute is the result of an "insured casualty loss". The landlord has no duty to repair until insurance proceeds are received by the landlord. Prior to that time, the tenant's remedies are severely limited.

If the premises are rendered totally unusable, and the loss is not caused by the negligence of the tenant or guest, the tenant or the landlord may terminate the rental agreement by written notice any time before repairs are completed. The tenant is entitled only to a pro rata refund of rent and refund of security deposit. The landlord may also terminate by giving written notice at any time prior to the completion of repairs.

If the premises are "partially unusable", and the loss was not caused by the tenant or guest, the tenant's only remedy, absent a written agreement to the contrary, is a court ordered reduction of rent in proportion to the extent of unusability. Under SS 92.005 of the Code, the tenant can recover costs and attorneys' fees in such an action. This is still a highly unrealistic and overly complex remedy which probably will seldom be used.

4-8. Closing the Rental Premises

The landlord may close the rental premises if repairs are economically unfeasible and the closing does not illegally terminate a tenant's lease. Numerous restrictions are placed on the landlord, and provisions are made for compensation to the tenant, with amounts of compensation varying according to the time when the decision to close is made.

See SS 92.055 of the Texas Property Code for a full explanation.

4-9. Harassment and Other Penalties

Any party who files a lawsuit in bad faith or for purposes of harassment is liable to the defendant for a civil penalty of one month's rent, plus $100.00, plus attorneys' fees.

Tex. Prop. Code SS 92.004.

If a tenant withholds rent, causes repairs, or deducts rent improperly, the landlord may recover actual damages and other civil penalties.

Tex. Prop. Code SS 92. 0158.

4-10. Modifications for the Disabled

A tenant must be given the right (at his or her own expense) in all existing facilities to modify the
construction in his or her unit and the common areas to permit access, subject only to reasonable limitations. Fair Housing Amendments Act of 1988.

The Act further entities a landlord in such a case to require a reasonable escrow or other safeguards to make sure that the unit is properly constructed and is returned to its original condition after the handicapped person leaves, unless unreasonable. Parker and Cox, Fair Housing and Disability Access Issues, Advanced Real Estate Law Course, 0-18 (1991). Restoring common areas is probably never reasonable. 24 C.F.R. 581 (1990).

Reasonable modifications for inside the dwelling and common areas include: the adding of grab bars and reinforcement of bathroom walls; for the hearing impaired, installation of a flashing light inside the dwelling connected to the door bell; for arthritis victims, door levers instead of knobs; for those having to use a wheelchair, foldback hinges and ramps. 24 C. F. R. 100. 203 (c) (I 990). More are listed in the regulations.

4-11. DTPA and Repairs

The Deceptive Trade Practices Act (DTPA) was becoming a powerful weapon for Texas tenants. See Comment, Texas Landlord Tenant Law and The Deceptive Trade Practices Act - Affirmative Remedies for the Tenant- 8 ST. MARY'S L.J. 807 (1977)(pre-habitability statute).

But the Texas legislature, when passing the habitability laws, included an interesting provision: '[the duties of a landlord and the remedies of a tenant under this subchapter are in lieu of existing common law and other statutory law warranties and duties of landlords for maintenance, repair, security, habitability, and nonretaliation, and remedies of tenants for a violation of those warranties and duties. Otherwise, this subchapter does not affect any other right of a landlord or tenant under contract, statutory law, or common law that is consistent with the purposes of this subchapter ... ." Tex. Prop. Code SS 92.061.

The question remains, does the DTPA still apply? Answer: questionable. A zealous advocate should bring the suit and make the argument. Smoke detector cases have provided some guidance on this issue. (The smoke detector law has a similar exculpatory clause.) A couple of appellate courts have thrown out other common law claims that were brought on smoke detector failures. See 7-3. Availability of DTPA and Common Law Claims. One court has thrown out a DTPA claim as well. Epps v. Ayer, 859 S.W. 2d 107 (Tex. App. --Eastland July 22, 1993, no writ history).

A strict reading of the section 92.061 shows it does not specifically exclude the DTPA, nor does it make reference to misrepresentation (although it does mention the converse: warranty). The habitability statute is not all encompassing -- the law does not even cover items that need repair that do not affect health or safety. The DTPA should be allowed to fill that gap if a misrepresentation was made. Furthermore, the habitability statute was created from an implied covenant of habitability found by the Texas Supreme Court. This distinguishes one factor mentioned in Epps. See other argument in the discussion of the smoke detector cases. 7-3. Availability of DTPA and Common Law Claims. As a last resort an advocate should argue that if the legislation removes a remedy entirely, this is a violation of

1995 Landlord/Tenant Supplement to Desk Reference by Robert Doggett, Legal Service of North Texas

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1995 Landlord/Tenant Supplement to Desk Reference
by Robert Doggett, Legal Service of North Texas